Monthly Archives: July 2012

Foreword: The Philippine Law Journal and The Development of Law

The progress of our nation depends to a large extent on the competence and character of its legal institutions. The judiciary and the legal profession not only inform our collective intelligence, but more importantly provide a deep sense of closure to issues that are at once personal and national in scope and relevance. These legal institutions must be able to respond to the exigencies of the present time with a profound understanding of history, a clear view of the future and an unwavering commitment to democratic ideals.

The PLJ, as an integral part of the academic bar, shares in the informative and transformative roles of the judiciary and the legal profession. Since its establishment in 1914, the PLJ has provided a distinctive and uninhibited space for the development and evolution of legal principles, theories and conceptions. It further serves as an intellectual check on the judicial process through the analysis and evaluation of court rulings and issuances. To further strengthen these legal institutions, the PLJ should continue to contribute to the development of the law by encouraging the publication of articles that offer new and unique insights on problems that traditionally confront legal thinking. Legal discourse best serves the ends of the law by allowing alternative propositions to permeate conventional thought. Only by subjecting these propositions to the rigors of the marketplace can we test their cogency and acceptability.1

There is an ever-present recognition “that new times and new manners may call for new standards and new rules.”2

The judiciary and the legal profession, which are by nature conservative institutions, will look to the PLJ for new developments in legal thought. The fourth issue of the PLJ’s 86th volume, with the theme Novel Approaches to Traditional Legal Dilemmas, is a meaningful step towards the enrichment of legal discourse. I am confident that the PLJ will continue to cultivate its distinctive and uninhibited space with a view to strengthening the judiciary and the legal profession.

* Cite as Antonio T. Carpio, The Philippine Law Journal and the Development of Law, 86 PHIL. L.J. i, (page cited) (2012).

** Senior Associate Justice, Supreme Court of the Philippines. Chair, PHILIPPINE LAW JOURNAL (1973). LL.B. University of the Philippines (1975).

BOOK REVIEW: IT’S AN IDEA, NOT A THEORY: REVIEW OF AMARTYA SEN’S THE IDEA OF JUSTICE

The conditions of present-day existence are such that those interested in justice must deal with the plurality of societies, with their different and at times incompatible cultures of legalism and various other social practices. This universe of communities provides a sizable sample for testing any theory of justice, which in turn serves as a standard for adjudicating whether a particular community complies with a general conception of a just society. With lowered transaction costs to information, detailed bases for evaluating societies are readily available to anyone interested. In this sense, the evaluation of theories that seek to achieve a universalized understanding of various types of societies has become less difficult. At the same time, the salience of pluralism and the celebration of differences as operational assumptions for many communities have made the notion of a general theory a less attractive academic engagement. Generalized narratives of the ideal are no longer as avidly sought, just as theorizing about truths has moved from the search for absolute standards to the understanding of partial forms of practical knowledge.

In any case, the dominant approach to theorizing just societies has been influenced by such substantive issues as the social structure, normative character of institutions and the nature of individual rights. The fixation with social structure is motivated by ideological debates that took root during the Age of Enlightenment, one of whose greatest achievements being the search for an alternative political model to replace theocracy. The popular terms for global structures—democracy, socialism, communism—are but code words that represent the modern view on how resources should be distributed or regulated in a manner different from how it was done in a theocratic society. Intertwined with the analysis of social structures is the persistent debate over the fundamental status of the individual or the nature of the person, both as alegalized commodity and a social artifact. A theory of justice must have something to say about the individual, because any conception of what it is to be human is fundamentally dependent upon the question of how to build a just society. A theory of justice is therefore complete only when an author is able to offer a structural account of how society should operate through a system of permissions and prohibitions manifested through law and identify the host of legal entitlements that make up a person within that realm.

Theory of Justice vs. Idea of Justice

John Rawls’s A Theory of Justice has become the standard account of the conditions required for a society to be considered just. Rawls’s work provides a tight correlation between social structure and individual rights, which he achieved by infusing a concern for the individual in the formulation of the theory of social structure, one that is instrumental to the more important goal of guaranteeing basic individual rights. The political consequence, if not the fundamental aim, of A Theory of Justice, is the justification of the liberal welfare state—one that places the highest premium on basic freedoms such as life, liberty, and property while simultaneously obliging the state to maintain a solicitous regard for the plight of the disadvantaged. This places Rawls within the comfort zone for the progressives of the American academy: the left-of- center—those not so radical as to be branded as communists, and not so conservative as to be labeled libertarians. Rawls therefore accepts the tandem of capitalism and democracy, but places a special focus on the unlucky and the downtrodden to temper the effects of the marketplace and address the problem of inherited status.

This short introduction to theorizing justice and Rawls’ place within a particular tradition of thought is meant to allow us to see Amartya Sen’s attempt in The Idea of Justice as a work that is at once similar to and different from Rawls’ opus. Sen, like Rawls, accepts the combination of capitalism and democracy as basic political and economic platforms for the operation of norms that are justice-enhancing, although, given the insights in his book, one might think his tacit endorsement is purely instrumental to the more general ideas he presents and which are the subject of this review. Rawls, on the other hand, is committed to both capitalism and democracy precisely because his work is tailor-fit for these platforms. A Theory of Justice was meant to show how a democratic capitalist society could be considered just, especially when compared with other societies that operate on a different set of assumptions.

In fact, one could view the book as Rawls’s way of showing that a capitalist democracy is the best social platform for achieving a just society because such a model is potentially the best at maximizing the liberty of the freedom-seeker and guaranteeing the welfare of the needy.

Given that Rawls’ work is the counterpoint to the most important discussions in Sen’s The Idea of Justice, I will proceed with this review by following Sen’s strategy. My goal is not to distinguish Sen from Rawls, but to point out some difficulties one may encounter with Sen’s interesting thoughts about justice.

Maximalist and Minimalist Approaches to Justice. Sen’s most important contribution is found in the Preface of The Idea of Justice, although it is barely stated and articulated in the rest of the book. He states that “[w]hat moves us, reasonably enough, is not the realization that the world falls short of being completely just—which few of us expect—but that there are clearly remediable injustices around us which we want to eliminate.”1 The goal is therefore not to achieve “a perfectly just world [but] to remove clear injustices to the extent [one] could.”2 The distinction between the search for the perfectly just world and the “identification of redressable injustice” is highlighted by tapping into what Sen considers the basic divide between the contractarian and the comparativist approaches to a theory of justice.3 The contractarian approach is the search for basic rules—the terms of contract—that could furnish the standards for determining whether a society is just, whereas the comparativist approach focuses on comparing actual conditions across different environments to get a sense of whether existing conditions may be considered just. This shift in focus—from the maximization of freedoms to the minimization of grave injustice—provides Sen with an interesting field of view that is potentially full of transformative insights.

Sen puts a wonderful twist to the tradition of theorizing by highlighting a particular difference between the two approaches. He emphasizes what one may call the distinction between a maximalist and a minimalist approach to justice. Contractarians, given their theoretical commitment, are bound to address the question of justice in terms of compliance (or non-compliance) with the terms of the social contract. A citizen, for example, may ask: how do I maximize my rights under this arrangement? From this standpoint, a society can be considered just when the contract provides for an optimum calibration of societal rules that maximizes the ability of community members to exercise their rights. Sen’s comparativism, on the other hand, grounds his analysis on the more practical concern of using reason both to identify and address those situations in particular societies that are clearly remediable given the existing distribution of entitlements. This focus directs his approach not to the question of maximizing rights to achieve a condition of ideal justice but to improving situations identified as grave instances of injustice in order to achieve a less unjust set of circumstances. Sen is therefore not interested in searching for heaven on earth; he is interested in the more practical task of getting people out of the hell in which they currently are.

Interestingly enough, Sen refuses to provide his general idea with any practical bite, retreating instead to the position that “[w]hat is presented here is a theory of justice in a very broad sense.”4 This is understandable considering that first, what qualifies as grave and redressable injustice requires knowledge of specific facts about a particular society, and second, what qualifies as a reasonable solution to that injustice imposes upon us an understanding of how any response must interact with a context that is always pregnant with complications. At the same time, this important feature of Sen’s theory consigns him purely to description and incapacitates him from the crucial task of prescription. This puts him in the ironic position of endorsing practical reasoning all throughout his book, but unable to provide just that because his insights require for their application those textured facts that can only be appreciated under the intense pressure of an actual problem.

Form vs. Substance. Another important aspect of The Idea of Justice stems from Sen’s being unplugged from institution-fixation and his persistent interest in the “advancement or retreat of justice.” He makes the controversial and uncharacteristically arrogant claim that “[i]f a theory of justice is to guide reasoned choice of policies, strategies or institutions, then the identification of fully just social arrangements is neither necessary nor sufficient.”5 Whereas Sen heaps praises on Rawls and is careful about his critique of his colleague’s work, here we get a sense of how fundamentally dismissive Sen is of Rawls’s work.

To distinguish The Idea of Justice from A Theory of Justice, Sen creates an opposition between transcendental institutionalism and what he calls a realization-focused comparison, which in another part of his presentation is highlighted as the “dichotomy between an arrangement-focused view of justice, and a realization-focused understanding of justice.”6 What he is relaying here is a general complaint about the direction of theorizing justice—that it has become an abstract search for just institutions rather than an honest-to-goodness attempt at understanding whether or not any policy solution results in progress from a situation of injustice to a situation of either justice or less injustice. At bottom, the critique of the modern tradition of theorizing justice is that it has gotten addicted with the form, and has lost sight of the substance of justice. Theorists have falsely assumed that a correct calibration of institutions will necessarily result in a just society. Against this backdrop, Sen argues that all ink and pen that have been devoted to the goal of getting the institutions right have been all but wasted because it is at once infeasible and redundant. It is enough, he thinks, to focus on realization and comparison, guided by reason.

To understand what Sen means, it is important to spot the word he tries to avoid, but which places in an ideological context the apparently- objective claims that he makes: instrumentalism. The discipline to which Sen belongs—economics—has historically suffered from the view that its technical tools are nothing but a formal proxy for the radical pragmatism of the instrumentalists. We can even go so far as to say that the current fashion that favors structures and rights are an implicit rejection of instrumentalism as a mode of achieving societal goals: the endorsement of freedom-centric arrangements avoids the creation of totalitarian structures even if the ostensible ultimate aim is freedom for all; on the other hand, the insistence on or belief in constitutional or human rights is an almost irrational commitment to a formal equality in the face of the worrisome idea that society can and should sacrifice some for the benefit of the many.

To be sure, the dominance of rhetoric over formal institutional structures and individual rights in theories of justice is motivated by the avoidance of possible pitfalls to which instrumentalists may bring society. In truth, the case for instrumentalism has always been strong. The focus on what works, the fixation with results, and the courage to trailblaze and dispense with settled ways to get from point A to point B—these are important ingredients for successful policies defined in terms of concrete achievements. There is, however, a high penalty for instrumentalism one which the world witnessed with terror over and over again in the 20th century. This is the danger that, in the wrong hands, instrumentalism can become a frightful beast that has the absolute capacity to rationalize and justify both means and ends and respects nothing but power itself. Given this experience with instrumentalism, Sen must therefore find a way to distinguish his realization-focused notion of justice with an instrumentalist approach to doing things the right way.

Furthermore, assuming that the so-called “realization-focused” approach to justice can be conceptually separated from instrumentalism, modern efforts at building political structures and justifying a status for individuals that are more or less immune from the powers of state administrators need not be dispensed with. This is because both the features of political institutions and the idealized protections to individuals furnish that all-important universalized standard with which to compare existing societies and assess whether any policy change would result in greater or lesser societal justice. In this sense, the idealized standards of Rawls that aim for structural justice and maximized liberal and welfare rights are akin to ultimate goals that travel at the speed of light: these are objectives that are constantly being approximated by progressive liberal societies, but are never quite reached given the constant reinvention and recurrence of social problems engendered by changing material conditions such as technological transformations, as well as the birth and death of generations of human beings.

Process v. Structure. Another controversial aspect of The Idea of Justice is its approach to the more fundamental question of whether the idea of a standardized conception of justice matters at all. Sen declares: “[a] systematic theory of comparative justice does not need, nor does it necessarily yield, an answer to the question ‘what is a just society’?”7 This notion can be divided into several distinctions between what he is trying to say and the subject of his entire critique: whereas Rawls sought to establish foundations for a just society,

Sen seeks incremental advances towards a less unjust society. Whereas Rawls’s theory of justice may be considered static (given that, from his perspective, the goal of a society that wants to become just is to follow what the theory has already laid down), Sen’s idea of justice is dynamic (given that any policy response is not made to depend on a general theory, but on an actual assessment of whether such policy, applied in the real world, could be a step towards less injustice). Whereas Rawls’s theory may be classified as structural (believing that a just structure would lead to a just society), Sen’s may be classified as situational (believing that advance or retreat of justice requires an understanding of actual events on the grassroots level). These distinctions probably also provide us with an insight as to why the titles of Rawls’ and Sen’s work are subtly distinct. Whereas Rawls openly spoke of a “theory” of justice, Sen writes about an “idea” of justice. The former saw his work as providing a blueprint for a just society, whereas the latter saw no need for such a master plan, emphasizing instead the importance of justice-enhancing tools. Determining what these tools are is probably where the problem lies.

So far as one can gather, the tools that help Sen build an idea of justice are: first, reason, which is painstakingly elaborated on for most of the book; and second, social choice theory, which is barely discussed in one chapter. With these tools, Sen would destroy all Rawlsian or Rawlsian-esque theories of justice. How he intends to do this is not explicitly shown, but one can read between the lines to understand where Sen’s grand idea is supposed to lead us. We can highlight the importance of these tools by distinguishing Sen’s approach from that of Rawls as one that is process-oriented rather than structure-oriented.

This, in essence, is Sen’s idea of justice: we should not be engrossed with thinking about what the fundamental structure of a just society should be, and thus avoid abstracting away both the initial conditions and ultimate goals of such a society. We should also not be fixated with human rights. Instead of just structures leading to good lives, we should think of processes that are fair and credible, that lead to decisions that in turn lead to a more just or less unjust situation. Finally, the best processes are those that deploy universal reason (the type of rationality that, in Sen’s words, is “positionally-unbiased” and characterized by “open impartiality”8) that has “plural grounding” and is empirically backed up by social choice theory. Sen does not have any idea, and adamantly refuses to provide any in this 400-page work, of what the features of a just society should be, but instead asks us to stake our all—the future of our civilization—on reason. Thus, so long as decision-making processes are powered by reason qualified by all the fancy language to ensure that it is not just pure self-interest, we can rest assured that societies all over the world can move towards more justice or less injustice. This explains why, despite Sen’s insistence on practical solutions independent of abstract theories, one cannot find in The Idea of Justice any such practical solutions to current problems: it is precisely because every social problem is so complex that the search for a solution must involve a detailed, if not empirical, approach to find not the best solution given the demands of an abstract theory, but the appropriate policy response that has multiple foundations that can convince the open-minded.

Reason and Ideology: the Case of the Ideological Children

It is very difficult to be dismissive of Sen’s work in The Idea of Justice considering his breadth of knowledge, genuine attempt at infusing reason with compassion, and well-articulated sense that there is something fundamentally amiss with modern academic efforts at theorizing justice. The author wonders, however, what it can contribute to the debates on justice other than the non- controversial endorsement of reason in an increasingly unreasonable 21st century by a renowned intellectual and the emphasis on utilitarianism by an economist, which should not be controversial among the followers of that discipline, but should be so among most philosophers and legal theorists.

Sen devotes almost all the pages of his book to hammering out the details of the kind of reason he espouses—open not closed, universal not parochial, compassionate not selfish, plurally grounded not one-track. But this is not particularly difficult to sell. Academics and non-academics will buy the idea that there is a place for reason in this world and that we need more of it to combat prejudice, ignorance, and corruption. Others might even say that the ability to deploy reason is the quality that determines the character of a person or the level of civilization a society has achieved. But beyond this, Sen’s effort will at once frustrate and disappoint.

The Problem of Policy Commitment. One cannot simply say, as a formula for bringing humanity closer to a just society (or, given Sen’s refusal to embrace a singular concept of justice, a less unjust one: “embrace reason, add a flavor of compassion, and do what needs to be done.” Given the formidable and more determinate structural theories he seeks to undermine, The Idea of Justice would find few adherents with this type of a program, if it even amounts to that. The wide expanse of Sen’s ideas is not only a virtue but is also a vice—his lack of adherence to any institutional set-up, disavowal of ideology and apparent embrace of universalism, uneasiness about the theoretical credibility of the idea of human rights, and view that happiness is not necessarily the ultimate goal of human beings all indicate that he has unplugged himself from the operative assumptions of mainstream theories. Simultaneously, this philosophy of non-commitment to the standard features of most theoretical accounts of justice consigns him to a policy of refusal to endorse any specific formula on how to solve any of society’s current problems. This position, though understandable, is fundamentally debilitating. The lack of political commitment to any initial conditions or organizational scheme of society and the similar refusal to provide any idea of what an actual just society might be, even for purposes of comparison, allow Sen to avoid almost all criticisms that can be leveled against the traditional theories he himself criticizes. But it also makes his book useless for those in search of concrete answers. In this sense, the title of his book provides an honest, if not literal, endorsement of what Sen is really saying: unlike Rawls and others who tried to provide a theory of justice by articulating a program as to how a just society should be structured and its intricate workings explained, Sen is simply giving us an idea of justice.

The Problem of Perspective. The most unrealistic assumption Sen makes in this book is not that the idea of open impartiality with plural grounding is unacceptable to most; it is that those engaged in policy will find his type of reason useful for purposes of actually promoting justice. To be sure, it would be difficult to find people who would be dismissive or even opposed to the notion that in the assessment of policies that result in greater or less injustice in the world, we should use the kind of reason that is endorsed in The Idea of Justice. But the problem lies in first, finding or establishing social platforms that are reason-friendly, and second, creating a culture of using reason for promoting justice among policy-makers.

Sen makes the problematic assumption that any social structure can accommodate his type of reason. This is not true, or is naïve at best. While it is true that every social structure will find ways to rationalize its existence in relation to the goal of pursuing justice, a wide divide usually exists between rhetorical justification and actual operation. Theocratic, communist, socialist, and democratic societies all have their canonical lines of justification for why they should exist and why their existence promotes some conception of justice. But a social platform that aggressively seeks to empower citizens (and not simply create disempowered majorities that can be manipulated into consenting) and strike a rational balance between majorities and minorities (or, in many cases empowered and disempowered minorities that constitute publics, and not just a public) has so far eluded humankind. Where to get the political capital and the will to impose compassionate reason to promote justice in a world of scarce resources and incompatible interests cannot easily be solved by arguing that this rationality must be open and plurally grounded. A theory of justice cannot avoid a discourse on political structure.

Even assuming that the political platform is theoretically capable of engaging in decision-making that is justice-oriented of the type that Sen adheres to, there is still no guarantee that policymakers will necessarily have an interest in actually engaging in that enterprise. Let us take democracy, the political platform that many might concede as a good business model for promoting justice, as an example.

In theory, representatives of government are agents of citizens within a particular jurisdiction, whether of a province, city, or district. However, this theory does not always hold true because of problems in elections (e.g. cheating, violence, lack of choice, massive poverty, and political entrenchment). Certain social problems also exist that impair the principal- agent relationship between the ruler and the ruled, making it difficult for citizens to be in the minds of their representatives in the latter’s decision- making processes over scarce government resources. Thus, representatives of the people can act against the interests of their constituents and even end up oppressing them because the need to align public action with public welfare does not exist in many instances of formal democracy. Even when representatives of the people are actually interested in fulfilling the wishes of the people they represent, such a rare occasion is no guarantee that public action will be motivated by reason and justice-promotion, since, ultimately, what the people want will not necessarily be reasonable or just. Majorities can err, and the history of the last century is a horrific testament to the fact that it can do so gravely. It is therefore important that political organs simultaneously represent the people in order to give them what they want (which is usually a good measure of justice) and, at the same time, rule the people even to the point of overriding them in the name of larger principles. This is, of course, what Sen would most likely endorse. It is how to get to this political culture that is entirely missing from his account.

Indeed, the rational and compassionate policymaker in Sen’s account is a rare commodity in today’s world. If at all, the decision-maker that is described in The Idea of Justice is akin to a judge, rather than a politician. True impartiality is a decision-making characteristic that is indispensable for the proper functioning of the judiciary. When judges decide, it is assumed that their actions are motivated by a genuine desire to get all the relevant facts and make binding pronouncements on the basis of the merits of the case. The institutional set-up of many judiciaries ensures that judges have an incentive to act rationally (by requiring them to write down and justify their decisions) and impartially (by giving them life tenure and fiscal autonomy, among other benefits). The institutional configuration of political departments, however, is entirely different. Officeholders have a remarkably distinct set of incentives. Members of parliaments, for example, make decisions by voting without the need to justify or even articulate the bases of their actions. In addition, as representatives, they are not expected to be impartial, the way judges are. Public agents are generally expected to reflect the wishes of their constituents (who may or may not be reasonable, and are almost always self-interested and only occasionally other-regarding). Their accountability mandates that they be partial to certain interests. In other words, the organizational characteristics of overtly political organizations like the executive and legislative departments make it impossible for policymakers in these places to act like Sen’s decision- maker: positionally-unbiased, rational, and open-minded.

The Problem of Ideology. In the introduction Sen gives us the short narrative of three children (Anne, Bob and Carla) vying for control over a flute. Anne wants the flute because she is the only one among them who can play it; Bob claims it because of poverty; and Carla feels entitled to it because she made it. With the addition of some justifying context, Sen states that “it is not easy to brush aside as foundationless any of the claims based respectively on the pursuit of human fulfillment, or removal of poverty, or entitlement to enjoy the products of one’s own labour.”9 Utilitarians would favor Anne, economic egalitarians would support Bob, and libertarians as well as leftists would side with Carla. Considering that all children and their supporters draw their arguments from “a different type of impartial and non-arbitrary reason,” it is possible that “[t]here may not indeed exist any identifiable perfectly just social arrangement on which impartial agreement would emerge.”10 The implication here is that various types of decisions grounded on differing philosophical positions about social objectives may be rationally justified. The author agrees, except that this is quite beside the point.

The implication of Sen’s argument is that any given social organization will have an answer to the problem of who should be entitled to the flute, and more importantly, that any such answer will not pose questions of justice, so long as the justification for any answer is made with all the honesty of an academic searching for a proper way to cite a footnote. The flaw in this argument is the assumption that the susceptibility of any social problem to a good-intentioned and rational solution necessarily dissolves all opposition and disempowers the losing parties from complaining. This is far from true. Following Sen’s example, if Anne gets the flute, both Bob and Carla will complain, because they will see the distribution as a form of injustice. Bob will say that equality is more important than either utility or liberty, while Carla will argue that liberty should take precedence over either utility or equality. Their arguments will not only be theoretical, but practical, as they will see questions of justice from the perspective of their favored ideology. Therefore, anyone who disagrees philosophically with the resulting distribution will argue that the policy decision made is unjust.

This problem applies with greater force when we consider that policy issues with ideological implications occur at every level of decision-making and is most pervasive when we talk about both the political structure and the legal architecture that supports it. While reason helps a lot in the elimination of ignorance and prejudice, it might not be as successful in eliminating ideological bias, which, in most cases, will be well-argued and rationally grounded. The disappointing absence of any treatment whatsoever of this problem in Sen’s work on justice substantially impairs his effort in highlighting the role of reason in humanity’s question for greater justice and lesser injustice.

** Assistant Professor of Law, University of the Philippines College of Law; Director, Institute of Government and Law Reform, UP Law Center (2011-present); Editor-in-Chief, Philippine Law and Society Review (2011-present); LL.M., Yale University (2005); LL.B., University of the Philippines (1999); A.B., University of Sto. Tomas (1995).

1 AMARTYA SEN, THE IDEA OF JUSTICE vii (2009).

2 Id. “It is fair to assume that the Parisians would not have stormed Bastille, Gandhi would not have challenged the empire on which the sun used not to set, Martin Luther King would not have fought white supremacy in ‘the land of the free and the home of the brave’, without their sense of manifest injustices that could be overcome. They were not trying to achieve a perfectly just world (even if there were any agreement on what that would be like), but they did want to remove clear injustices to the extent they could.”

3 See SEN at 5-8 for a basic discussion on the difference of the two approaches to a theory of justice.

4 SEN at ix.

5 SEN at 15.

6 SEN at 10.

7 SEN at 105.

8 See SEN at 124-126, 155-161. “What may be needed in this exercise is a ‘positionally unbiased’ approach…The search for some kind of position-independent understanding of the world is central to the ethical illumination that may be sought in a non-relational approach.” (Id. at 161). However, take note that this neutral position may be good for judges, but not necessarily for policy makers.

GREEN RULES: GRAY AREAS AND RED FLAGS

Environmental litigation has gained some traction in recent years with the Manila Bay case 1 and the case involving SM Baguio.2 While the jury is still out on whether litigation is an effective means of protecting the environment, greater activism on the part of the courts on environmental issues is an intriguing concept.

This paper aims to give environmental litigation a closer scrutiny by providing an analysis of the Rules of Procedure for Environmental Cases (hereinafter, the “Green Rules”). Specifically, this analysis involves identifying what is referred to in the paper as the “gray areas” and “red flags” of the Green Rules. By “gray areas” this paper refers to the provisions of the Green Rules that seem to be unclear and may be subject of questions later on. “Red flags” on the other hand are the provisions of the Green Rules that raise some serious concerns.

Litigation in real life, whether environmental or otherwise, is more than just the rules. But this paper does not go into the aspects of litigation outside of the rules and is therefore in that sense limited. However, any serious study of law must begin with the rules.

II. Background of the Green Rules

The promulgation of the Green Rules was a necessary consequence of the establishment of the “Green Courts” on January 28, 2008, via Supreme Court Administrative Circular No. 23-2008 which designated special courts to hear, try and decide environmental cases. One can surmise the rationale behind the designation of these Green Courts to be:

speeding up the progress of environmental cases; and

enhancing the level of expertise of judges to deal with the
technical matters of environmental litigation.

Once the Green Courts were established, it was simply a matter of time before it became necessary to have Green Rules.

A Technical Working Group (“TWG”) was formed and given the task of drafting the Green Rules. The TWG3 worked on the draft Green Rules from January 28, 2009 to June 19, 2009.

Judges, lawyers, NGOs and other concerned individuals and groups first evaluated the final draft of the TWG during the Forum on Environmental Justice: Upholding the Right to a Balanced and Healthful Ecology (“Forum”) held on April 16-17, 2009. This unique forum was held simultaneously in three cities: Baguio, Iloilo, and Davao through videoconferencing. The Forum itself had a broader objective than merely evaluating the Green Rules. It was intended:

to recommend to the Supreme Court actions it can take to protect and preserve the environment;

to validate the draft Rule[s] of Procedure for Environmental Cases;

to discuss the need for a mechanism/structure that will address the need to monitor environmental cases or issues and monitor compliance therewith; and

to identify best practices of some agencies/units and replicate [these practices] in particular situation[s].4

During the Forum, commitments were made by various government agencies, civil society and academia to help support the efforts to protect the environment. This underscores the fact that the Green Rules was merely part of a broader undertaking and that the rules mean nothing without the will to enforce environmental laws.

Participants of the Forum were able to ask questions and provide feedback on the draft Green Rules. The product of these exchanges were collated and brought again to the TWG for consideration, which thereafter incorporated it to the draft before finally submitting the Green Rules to the Sub-Committee on Rules of Procedure for Environmental Cases. The Court en banc approved the Green Rules on April 13, 2010, and became effective on April 29, 2010.5

III. Importance of the Green Rules

Internationally, it is recognized that the judiciary plays a crucial role in protecting the environment. In 2002, the Global Judges Symposium on Sustainable Development and the Role of Law was held in Johannesburg, South Africa, which gathered Chief Justices and senior judges from about 60 countries and several Judges from International Courts and Tribunals.6 At this symposium, the Johannesburg Principles were adopted. It states in part:

We affirm that an independent Judiciary and judicial process are vital for the implementation, development, and enforcement of environmental law, and that members of the Judiciary, as well as those contributing to the judicial process at the national, regional, and global levels, are crucial partners for promoting compliance with, and the implementation and enforcement of, international and national environmental law…

We express our conviction that the Judiciary, well informed of the rapidly expanding boundaries of environmental law and aware of its role and responsibilities in promoting the implementation, development, and enforcement of laws, regulations, and international agreements relating to sustainable development, plays a critical role in the enhancement of the public interest in a healthy and secure environment…7 (emphases supplied)

The purpose of the Green Rules was to provide effective judicial remedies for environmental protection. It recognizes that the nature of environmental cases makes traditional methodologies ineffective at times. It has been said that:

The rules recognize that the nature environmental cases requires innovative and swift action considering the magnitude and irreversibility of environmental threats. Thus, the innovations offered by the Green Rules correspond to the gravity of the threat and the need for decisive action.

The Green Rules were written for the purpose of removing three main roadblocks in environmental litigation. The first roadblock is the ability of individuals and groups to commence environmental litigation. This goes into the locus standi issue in environmental cases. This also goes into the challenges faced by the poor and marginalized groups to commence and sustain environmental litigation. The second roadblock is the inherent delays in the judicial process. While due process must be protected, technicalities have been known to make remedies useless because of the time it takes for the judicial process to move forward. The third roadblock is the difficulty in applying traditional rules on obtaining, storing and presenting evidence for environmental cases. The quantum and nature of evidence required for proving causality through traditional means may prove to be too daunting for victims of environmental degradation…

Thus, the Green Rules intend to make the judicial process a partner in obtaining environmental justice.8

IV. Salient Features of the Green Rules

A. The Scope

Rule 1, Section 2 of the Green Rules provides:
SEC. 2. Scope.—These Rules shall govern the procedure in civil, criminal and special civil actions before the Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts involving enforcement or violations of environmental and other related laws, rules and regulations such as but not limited to the following:

… … …

The Green Rules apply to all actions involving enforcement or violations of environmental and other related laws, rules and regulations. It should be noted that the laws listed under Section 2 are more than those listed under SC Administrative Circular No. 23-2008.9 But because both lists are not intended to be exhaustive, then there is no expansion of coverage because of the Green Rules.

B. The Objectives

Rule 1 Section 3 provides:

SEC. 3. Objectives.—The objectives of these Rules are:
(a) To protect and advance the constitutional right of the people to a balanced and healthful ecology;
(b) To provide a simplified, speedy and inexpensive procedure for the enforcement of environmental rights and duties recognized under the Constitution, existing laws, rules and regulations, and international agreements;
(c) To introduce and adopt innovations and best practices ensuring the effective enforcement of remedies and redress for violation of environmental laws; and
(d) To enable the courts to monitor and exact compliance with orders and judgments in environmental cases.

It can be said that the foundation of the Green Rules is the constitutional right of the people to a balanced and healthful ecology. Therefore, the Green Rules do not purport to protect nature for its inherent value but because of its value to human beings.

The second and third objectives justify the bulk of the provisions of the Green Rules. Many of the provisions are intended to speed up the conclusion of environmental cases or provide immediate remedies. For instance, Rule 2, Sections 1 and 2 identify the pleadings and motions allowed as well as prohibited pleadings and motions as follows:

SEC. 1. Pleadings and motions allowed.—The pleadings and motions that may be filed are complaint, answer which may include compulsory counterclaim and cross-claim, motion for intervention, motion for discovery and motion for reconsideration of the judgment.
Motion for postponement, motion for new trial and petition for relief from judgment shall be allowed in highly meritorious cases or to prevent a manifest miscarriage of justice.

SEC. 2. Prohibited pleadings or motions.—The following pleadings or motions shall not be allowed:

(a) Motion to dismiss the complaint;

(b) Motion for a bill of particulars;

(c) Motion for extension of time to file pleadings, except to
file answer, the extension not to exceed fifteen (15) days;

(d) Motion to declare the defendant in default;

(e) Reply and rejoinder; and

(f) Third party complaint.

Section 1 is said to be an exhaustive list.10 If so, then Section 2 is redundant because everything not in Section 1 is deemed prohibited and there is no need for a separate listing for prohibited pleadings. Perhaps Section 2 is merely intended to reiterate the prohibited pleadings and motions.11

The other provisions, which are intended to expedite the process, are the provisions on:

SEC. 12. Payment of filing and other legal fees.—The payment of filing and other legal fees by the plaintiff shall be deferred until after judgment unless the plaintiff is allowed to litigate as an indigent. It shall constitute a first lien on the judgment award.

For a citizen suit, the court shall defer the payment of filing and other legal fees that shall serve as first lien on the judgment award.

Thus, the payment of filing fees is deferred. But if the litigant is an indigent he is exempted altogether.

As to the fourth objective, it can be noted that even without the Green Rules the Supreme Court has exercised a similar power in the Manila Bay case.17

The value of these objectives is that they may aid in the interpretation of the Green Rules in case there is a dispute as to how a particular rule is to be applied.

C. The Consent Decree

Rule 1, Section 4 (b) defines a “consent decree” as “a judicially- approved settlement between concerned parties based on public interest and public policy to protect and preserve the environment.”
The term is not entirely absent from Philippine jurisprudence. It appears that there are four Philippine cases that refer to a “consent decree.”18

Of these, one in particular,19 the Court impliedly defined a consent decree as an agreement or stipulation made by the parties to a case which has been put in the form of a judgment, in an effort to give it the force and effect of a judgment. None of these cases however discuss the concept in depth. As far as Philippine laws are concerned, there appears to be no mention of the concept in our statute books.

In the Green Rules, a consent decree is a means to expedite environmental litigation. Rule 3, Section 5 provides:

SEC. 5. Pre-trial conference; consent decree.—The judge shall put the parties and their counsels under oath, and they shall remain under oath in all pre-trial conferences.

The judge shall exert best efforts to persuade the parties to arrive at a settlement of the dispute. The judge may issue a consent decree approving the agreement between the parties in accordance with law, morals, public order and public policy to protect the right of the people to a balanced and healthful ecology… (emphasis supplied)

D. The Continuing Mandamus

Rule 1, Section 4 (c) defines a continuing mandamus as “a writ issued by a court in an environmental case directing any agency or instrumentality of the government or officer thereof to perform an act or series of acts decreed by final judgment which shall remain effective until judgment is fully satisfied.”

A continuing mandamus was first used by the Court in the Metro Manila Development Authority v. Concerned Residents of Manila Bay20 where the Court held that “the Court may, under extraordinary circumstances, issue directives with the end in view of ensuring that its decision would not be set to naught by administrative inaction or indifference.”21 In this case, the Court ordered:

The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA, DPWH, DBM, PCG, PNP Maritime Group, DILG, and also of MWSS, LWUA, and PPA, in line with the principle of “continuing mandamus”, shall, from finality of this Decision, each submit to the Court a quarterly progressive report of the activities undertaken in accordance with this Decision.22

I. Grounds for the Petition

Rule 8, Section 1 provides:

SEC. 1. Petition for continuing mandamus.—When any agency or instrumentality of the government or officer thereof unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station in connection with the enforcement or violation of an environmental law rule or regulation or a right therein, or unlawfully excludes another from the use or enjoyment of such right and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty, attaching thereto supporting evidence, specifying that the petition concerns an environmental law, rule or regulation, and praying that judgment be rendered commanding the respondent to do an act or series of acts until the judgment is fully satisfied, and to pay damages sustained by the petitioner by reason of the malicious neglect to perform the duties of the respondent, under the law, rules or regulations. The petition shall also contain a sworn certification of non-forum shopping.

Thus the requisites are:

a. When an agency or instrumentality of the government or officer thereof:

i. unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station in connection with the enforcement or violation of an environmental law rule or regulation or a right therein; or

ii. unlawfully excludes another from the use or enjoyment of such right; and

b. There is no other plain, speedy and adequate remedy in the ordinary course of law.

2. Filing the Petition

The petition may be filed in any of the following:

a. Regional Trial Court exercising jurisdiction over the territory where the actionable neglect or omission occurred; or

Upon receipt of a petition sufficient in form and in substance, the court shall issue the writ and require the respondent to comment on the petition within 10 days from receipt of a copy thereof.25 Upon receipt of the comment or the expiration of the time for the filing the same, the court may hear the case which shall be summary in nature or require the parties to submit memoranda.26 The court has 60 days to issue a decision from the date of the submission of the petition for resolution.27

4. Judgment

The remedies that the court may grant include:28
a. the privilege of the writ of continuing mandamus requiring respondent to perform an act or series of acts until the judgment is fully satisfied; and

b. such other reliefs as may be warranted resulting from the wrongful or illegal acts of the respondent.

In any case, the court shall require the respondent to submit periodic reports detailing the progress and execution of the judgment, and the court may, by itself or through a commissioner or the appropriate government agency, evaluate and monitor compliance.29

E. The Environmental Protection Order

Rule 1, Section 4 (d) of the Green Rules defines an environmental protection order (hereinafter “EPO”) as “an order issued by the court directing or enjoining any person or government agency to perform or desist from performing an act in order to protect, preserve or rehabilitate the environment.” The idea behind the EPO was to provide for a remedy similar to the protection orders under the Anti-Violence Against Women and Their Children Act of 2004.30

Rule 2, Section 8 provides:

SEC.8. Issuance of Temporary Environmental Protection Order (TEPO).—If it appears from the verified complaint with a prayer for the issuance of an Environmental Protection Order (EPO) that the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of the multiple-sala court before raffle or the presiding judge of a single-sala court as the case may be, may issue ex parte a TEPO effective for only seventy-two (72) hours from date of the receipt of the TEPO by the party or person enjoined. Within said period, the court where the case is assigned, shall conduct a summary hearing to determine whether the TEPO may be extended until the termination of the case.

The court where the case is assigned, shall periodically monitor the existence of acts that are the subject matter of the TEPO even if issued by the executive judge, and may lift the same at any time as circumstances may warrant.

The applicant shall be exempted from the posting of a bond for the issuance of a TEPO.

The court in civil or criminal case31 covered by the Green Rules may issue a TEPO effective for 72 hours on the ground that the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury. The TEPO may be extended by the Court until the termination of the case. However, the TEPO may be dissolved if it appears after hearing that its issuance or continuance would cause irreparable damage to the party or person enjoined while the applicant may be fully compensated for such damages as he may suffer and subject to the posting of a sufficient bond by the party or person enjoined.

Therefore, it is not sufficient for the person enjoined to simply allege damage. He must prove that such damage is irreparable and the nature of the damage suffered or to be suffered by applicant is of a nature that can be compensated monetarily.

F. The SLAPP

Rule 1, Section 4 (g) of the Green Rules defines SLAPP as follows:

(g) Strategic lawsuit against public participation(SLAPP)refers to an action whether civil, criminal or administrative, brought against any person, institution or any government agency or local government unit or its officials and employees, with the intent to harass, vex, exert undue pressure or stifle any legal recourse that such person, institution or government agency has taken or may take in the enforcement of environmental laws, protection of the environment or assertion of environmental rights.

The civil and criminal procedure portions of the Green Rules each have their own SLAPP provisions.

In the Civil Procedure portion, a SLAPP is re-defined as follows:

SEC. 1. Strategic lawsuit against public participation (SLAPP).—A legal action filed to harass, vex, exert undue pressure or stifle any legal recourse that any person, institution or the government has taken or may take in the enforcement of environmental laws, protection of the environment or assertion of environmental rights shall be treated as a SLAPP and shall be governed by these Rules.

To illustrate, a corporation, which has been charged for violating an environmental law, may file a suit for damages against the person who filed the case against it. In that civil suit for damages, the defendant may raise the defense that the action filed against him is a SLAPP and should be governed by the Green Rules. The defendant may do so by filing an answer interposing as a defense that the case is a SLAPP.32 Documents, affidavits, papers and other evidence must support this defense.33 Thereafter, the court in that case will direct the other party to file an opposition showing the suit is not a SLAPP.34 Such opposition must include the evidence in support of its allegations and must be filed within a non-extendible period of five (5) days from receipt of notice that an answer has been filed.35

The court will then set a hearing within fifteen (15) days from filing of the comment or the lapse of the period.36 The hearing will be summary in nature.37 The party alleging that the civil suit is a SLAPP must prove by substantial evidence that his environmental action is legitimate action while the other party must prove by preponderance of evidence the civil suit is not a SLAPP. The court has 30 days from the date of the hearing to resolve the SLAPP defense.

In case a criminal action is filed against the person filing an environmental case, the accused may file a motion to dismiss on the ground that the criminal action is a SLAPP.38 The summary nature of the hearing and quantum of evidence required of each party follows that of civil suits.39 The only difference is that the person filing the criminal action is not require to file an opposition and no time frame is given for setting the hearing or the resolution of the defense.

The idea behind these provisions is to protect individuals and groups who have filed or intend to file actions to protect the environment. SLAPP suits are “meritless suits aimed at silencing a plaintiff’s opponents, or at least at diverting their resources.”40 Therefore, they are mere harassment suits. However, what distinguishes SLAPP from other harassment suits is that they may have a political dimension in the sense that citizen participation is affected, or the right to petition the government for redress of grievances is restrained.41

G. The Writ of Kalikasan

When the first complete draft of the Green Rules was nearing completion, the idea was presented to include the rules’ own version of the writ of amparo. There was some debate on the name to be given to the writ, but the TWG finally settled on the current name, writ of kalikasan.

1. To Whom Available

Rule 7, Section of the Green Rules provides:

SEC. 1. Nature of the writ.—The writ is a remedy available to a natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.

Thus, the writ is available to any natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of other persons.

2. When Available

The persons represented must have their right to a balanced and healthful ecology violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity. Such violation must involve environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.

3. Filing the Writ

Rule 7, Sections 3 and 4 provide:

SEC. 3. Where to file.—The petition shall be filed with the Supreme Court or with any of the stations of the Court of Appeals.

SEC. 4. No docket fees.—The petitioner shall be exempt from the payment of docket fees.

The writ may only be filed with the Court of Appeals or Supreme Court. There are no docket fees paid.

4. Writ of Kalikasan v. Continuing Mandamus

The table below42 highlights the differences between the writ of kalikasan and the continuing mandamus:

Kalikasan

Continuing Mandamus

Who may file

Natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency

Person aggrieved

When available

Constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission;

Involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.

Unlawful neglect in the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station in connection with the enforcement or violation of an environmental law rule or regulation or a right therein, or unlawful exclusion of another from the use or enjoyment of such right; and

There is no other plain, speedy and adequate remedy in the ordinary course of law,

Against whom

Public official or employee, or private individual or entity

Agency or instrumentality of the government or officer thereof

Where to file

Supreme Court or with any of the stations of the Court of Appeals

Regional Trial Court exercising jurisdiction over the territory where the actionable neglect or omission occurred or with the Court of Appeals or the Supreme Court

Discovery Measures

Ocular inspection; Production and inspection of documents and things

None

Relief(s) available

Direct respondent to permanently cease and permanently cease and desist from committing acts or neglecting the performance of a duty in violation of environmental laws resulting in environmental destruction or damage;

Direct the respondent public official, government agency, private person or entity to protect, preserve, rehabilitate or restore the environment;

Direct the respondent public official, government agency, private person or entity to monitor strict compliance with the decision and orders of the court;

Direct the respondent public official, government agency, or private person or entity to make periodic reports on the execution of the final judgment; and

Such other reliefs which relate to the right of the people to a balanced and healthful ecology or to the protection, preservation, rehabilitation or restoration of the environment, except the award of damages to individual petitioners.

Judgment commanding the respondent to do an act or series of acts until the judgment is fully satisfied, and to pay damages sustained by the petitioner by reason of the malicious neglect to perform the duties of the respondent, under the law, rules or regulations.

V. Gray Areas

A. Prohibition against TRO and Preliminary Injunction

Rule 2, Section 10 provides:

SEC. 10. Prohibition against temporary restraining order (TRO) and preliminary injunction.—Except the Supreme Court, no court can issue a TRO or writ of preliminary injunction against lawful actions of government agencies that enforce environmental laws or prevent violations thereof.

During the TWG meeting, it was brought to the group’s attention that one obstacle faced by some environmental groups is the prohibition against TROs under Philippine law. In particular, what was referred to were Presidential Decrees No. 605 (“P.D. No. 605”) and 1818 (“P.D. No. 1818″).

P.D. No. 605 sought to prevent the practice of courts to issue preliminary injunctions and/or preliminary mandatory injunctions in disputes involving or growing out of the issuance, suspension, revocation, approval or disapproval of any concession, license, permit, patent or public grant of any kind for the disposition, exploitation, utilization, exploration and development of the natural resources of the country.43 Section 1 of P.D. No. 605 provides:

No court of the Philippines shall have jurisdiction to issue any restraining order, preliminary injunction or preliminary mandatory injunction in any case involving or growing out of the issuance, approval or disapproval, revocation or suspension of, or any action whatsoever by the proper administrative official or body on concessions, licenses, permits, patents, or public grants of any kind in connection with the disposition, exploitation, utilization, exploration and/or development of the natural resources of the Philippines.

Thus, what P.D. No. 605 prohibits is the issuance of a TRO, preliminary injunction or preliminary mandatory injunction in cases involving:

the issuance, approval or disapproval, revocation or suspension of, or any action whatsoever;

by the proper administrative official or body;

regarding concessions, licenses, permits, patents, or public
grants of any kind; and

in connection with the disposition, exploitation, utilization, exploration and/or development of the natural resources of the Philippines.

On the other hand, P.D. No. 181844 was based on the policy that it is in the public interest to adopt a similar prohibition45 “against issuance of such restraining orders or injunctions in other areas of activity equally critical to the economic development effort of the nation, in order not to disrupt or hamper the pursuit of essential government projects.”46

Thus, Section 1 of P.D. No. 1818 provides:

SEC. 1. No court in the Philippines shall have jurisdiction to issue any restraining order, preliminary injunction, or preliminary mandatory injunction in any case, dispute, or controversy involving an infrastructure project, or a mining, fishery, forest or other natural resource development project of the government, or any public utility operated by the government, including among others public utilities for the transport of the goods or commodities, stevedoring and arrastre contracts, to prohibit any person or persons, entity or governmental official from proceeding with, or continuing the execution or implementation of any such project, or the operation of such public utility, or pursuing any lawful activity necessary for such execution, implementation or operation.

a. an infrastructure project, or a mining, fishery, forest or other natural resource development project of the government, or any public utility operated by the government, including among others public utilities for the transport of the goods or commodities, stevedoring and arrastre contracts; and

b. prohibition of any person or persons,entity or governmental official from proceeding with, or continuing the execution or implementation of any such project, or the operation of such public utility, or pursuing any lawful activity necessary for such execution, implementation or operation.

Rule 1, Section 10 of the Green Rules exempts the Supreme Court from the prohibition, but the two substantive laws explicitly cover all courts. It is submitted that this conflict is resolved by Republic Act No. 8975:47

Pursuant to the mandate of R.A. No. 8975, only the Supreme Court has the authority to issue a temporary restraining order, preliminary injunction and preliminary mandatory injunction against the Government or any or its instrumentalities, officials and agencies in cases such as those filed by bidders or those claiming to have rights through such bidders involving such contract or project.48

The specific provision referred to must be Section 3 of R.A. 8975, which states:

SEC. 3. Prohibition on the Issuance of Temporary Restraining Orders, Preliminary Injunctions and Preliminary Mandatory Injunctions.— No court, except the Supreme Court, shall issue any temporary restraining order, preliminary injunction or preliminary mandatory injunction against the government, or any of its subdivisions, officials or any person or entity, whether public or private, acting under the government’s direction, to restrain, prohibit or compel the following acts:

(a) Acquisition,clearance and development of the right-of- way and/or site or location of any national government project;

(b) Bidding or awarding of contract/project of the national government as defined under Section 2 hereof;

(c) Commencement, prosecution, execution, implementation, operation of any such contract or project;

(d) Termination or rescission of any such contract/project; and

(e) The undertaking or authorization of any other lawful activity necessary for such contract/project…

It may be noted that the coverage of Section 3 of R.A. 8975 is narrower than that of P.D. 605 and P.D. 1818. Thus, it only amends P.D. 605 and P.D. 1818 to the extent of its narrower coverage.
Another question that may be raised is whether the TEPO is covered by these prohibitions, considering that, although not called a restraining order, a TEPO is in the nature of a restraining order or injunction. The Annotation explains that Section 10 is distinct from Section 8 on the issuance of the TEPO, because of the different premises on which the sections are based.49 Thus, the prohibition does not apply to the TEPO. But can’t this be considered as case where a procedural rule circumvents a substantive law provision?

B. Limits of the Writ of Kalikasan

There is a view that the writ may only be filed in representation of those whose constitutional rights are injured. This appears to be the position of the Annotation as well.50 As this author has argued elsewhere:

However, there seems to be no reason why the natural persons directly injured or threatened by the violation may not seek the remedy directly and not through others on their behalf. Persons who directly suffer from environmental damage should not have to wait for others to act for them. This would be contrary to the stated objectives of the Green Rules. Thus, Section 1 should be interpreted to mean that the following may file for a writ of kalikasan:

a. Natural persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation; or

b. Juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation.51 (emphasis supplied)

Another limitation is that the writ will not be available if the environmental damage only affects one city or province.52 Like the limitation on locus standi adverted to above, there seems to be no reason for this rule as well.

C. Precautionary Principle

Rule 1, Section 4 (f) defines the precautionary principle as a principle which states “that when human activities may lead to threats of serious and irreversible damage to the environment that is scientifically plausible but uncertain, actions shall be taken to avoid or diminish that threat.”

However, the only place where the principle is used is in Rule 20, Sections 1 and 2, which state:

SEC.1. Applicability.—When there is a lack of full scientific certainty in establishing a causal link between human activity and environmental effect, the court shall apply the precautionary principle in resolving the case before it.
The constitutional right of the people to a balanced and healthful ecology shall be given the benefit of the doubt.

SEC. 2. Standards for application.—In applying the precautionary principle, the following factors, among others, may be considered: (1) threats to human life or health; (2) inequity to present or future generations; or (3) prejudice to the environment without legal consideration of the environmental rights of those affected.

Thus, the precautionary principle is to be applied when there is a lack of scientific certainty in establishing a causal link between human activity and environmental effect. But the application is not automatic. The court must first consider three things before applying the principle:

(1) threats to human life or health;
(2) inequity to present or future generations; or
(3) prejudice to the environment without legal consideration of the environmental rights of those affected.

But these provisions do not indicate how the principle is to be applied. The definition cited earlier also does not provide any guidance, for all it says is that “when human activities may lead to threats of serious and irreversible damage to the environment that is scientifically plausible but uncertain, actions shall be taken to avoid or diminish that threat.”

Rule 20, Section 1 uses the precautionary principle in the context of appreciation of evidence or the quantum of evidence required while the definition deals with the principle as a justification for action. There appears to be a ‘disconnect’ between the definition and the application.

During the early meetings of the TWG it was suggested that certain presumptions be included in the rules so that the burden of proof is shifted to the alleged cause of the environmental damage. The reason for this was because normally, the cost of providing scientific proof for causality is beyond the reach of the poor who are often the victim of environmental harm. However, eventually these presumptions were considered too radical and removed from the draft.

VI. Red Flags

A. Locus standi

Rule 2, Sections 4 and 5 provide:

SEC. 4. Who may file.—Any real party in interest, including the government and juridical entities authorized by law, may file a civil action involving the enforcement or violation of any environmental law.

SEC. 5. Citizen suit.—Any Filipino citizen in representation of others, including minors or generations yet unborn, may file an action to enforce rights or obligations under environmental laws. Upon the filing of a citizen suit, the court shall issue an order which shall contain a brief description of the cause of action and the reliefs prayed for, requiring all interested parties to manifest their interest to intervene in the case within fifteen (15) days from notice thereof. The plaintiff may publish the order once in a newspaper of a general circulation in the Philippines or furnish all affected barangays copies of said order.

The issue of locus standi is very important for environmental cases. The argument is that because everyone is affected by environmental damage, everyone should have standing to sue. The problem, however, is that the fact that damage to the environment is spread out to many makes it nearly impossible to prove specific damage unique to a specific plaintiff. Objections may also be raised against groups that file cases for environmental concerns if the members of such groups may not be part of the communities directly affected by the environmental damage.

During the first few meetings of the TWG, the members reviewed the paper of Justice Consuelo Ynares-Santiago titled Framework for Strengthening Environmental Adjudication in the Philippines.53 In this paper, Justice Ynares- Santiago pointed out that:

In various consultative forums discussing environmental adjudication, the issues of standing to sue and class suits are always raised.

Environmental law advocates often suggest that the Court should relax the rules on standing to sue and class actions in order to make it easier for the injured parties to file a case.54

Because a cause of action only exists if the petitioners have a right that has been violated and the defendant has a duty to protect that right,55 in the case of public interest law groups, while the defendant may have the duty to respect a right which has been violated, such groups may not be the injured party. Thus, what is important to these groups is that they are explicitly allowed to file suits on behalf of the injured parties.56
Is this request granted by the Green Rules?

No, it is not.

Only a real party in interest can file an environmental case. A real party in interest is one “who stands to be benefited or injured by the judgment in the suit,or the party entitled to the avails of the suit.”57 An exception is in the case of a writ of kalikasan which explicitly provides that the writ is filed on behalf of others.

A possible solution may be Section 5. Although Section 5 is intended to codify the Court’s ruling in Oposa v. Factoran,58 it may not necessarily provide the requested remedy. The Court in this case characterized it as a “taxpayer’s class suit” wherein the minor petitioners alleged that they represented “their generation as well as generations yet unborn.” The Court ruled:

We find no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their personality to sue on behalf of the succeeding generations can only be based on the concept of inter generational responsibility insofar as the right to a balanced and healthful ecology is concerned.59

It should be noted however that Section 5 does not contemplate a class suit but a citizen’s suit. Therefore all the requirements for a citizen’s suit must be complied with.60

B. Environmental laws?

Rule 1, Section 2 provides:

SEC. 2. Scope.—These Rules shall govern the procedure in civil, criminal and special civil actions before the Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts involving enforcement or violations of environmental and other related laws, rules and regulations such as but not limited to the following:

It can be argued that not all of these laws qualify as environmental laws or can give rise to an action covered by the Green Rules. For example the primary purpose behind R.A. No. 8371, or the Indigenous Peoples Rights Act is the recognition and promotion of all the rights of Indigenous Cultural Communities/Indigenous Peoples. It is difficult to identify specific provisions of this law which can give rise to an action under the Green Rules. The same can be said for R.A. No. 7076 or the People’s Small-Scale Mining Act. Inclusion in this list must go beyond the title of the laws but the actual provisions of the laws themselves.

R.A. No. 8435, Agriculture and Fisheries Modernization Act of 1997; R.A. No. 9522, The Philippine Archipelagic Baselines Law; R.A. No. [9513] , Renewable Energy Act of 2008; R.A. No. [9367] , Philippine Biofuels Act; and other existing laws that relate to the conservation, development, preservation, protection and utilization of the environment and natural resources. (emphasis supplied)
Originally some of these laws listed here were included in the list of environmental laws. But considering their length and the fact that these laws were not in fact environmental in nature, they were removed. However, because some considered that these laws may contain “environmental” provisions, they were included again in subsection (y), which lists some laws which may have “environmental provisions.”
The Green Rule Book attempted to identify which of the provisions of these laws qualify as possibly being environmental in nature. But these are mere educated guesses and we will never know until an actual case or controversy comes up. Therefore one red flag issue with the Green Rules is the doubtful environmental character of the laws included in the lists in Section 2 of Rule 1.

C. SLAPP Stick?

The SLAPP provisions of the Green Rules have good intentions. It provides those who file environmental cases an expeditious remedy against attempts to harass them. Admittedly, employing a SLAPP defense is easier than countering with a malicious prosecution suit. However, there are some concerns about the application of the SLAPP provisions.

First, it seems that the SLAPP defense is only available after a criminal or civil action is filed against those filing an environmental case. Even if the SLAPP defense is eventually successful, the defendants in the environmental case already succeeded in diverting the time and resources of the original complainants.

Second, it is possible for the SLAPP provisions themselves be an instrument of those causing the environmental harm. For instance, a large polluting corporation may be aware that some individuals injured by their pollution is about to file an environmental case against it. Once the environmental case is filed it raises a SLAPP defense. Under this scenario the quantum of evidence required is reversed wherein the polluting entity is only required to provide substantial evidence while the injured party is required to provide a preponderance of evidence.

Third, SLAPP defenses will most likely be heard by courts who are not designated as green courts. Therefore courts with less expertise in environmental concerns will rule on the validity of the environmental claim, albeit merely for purposes of the SLAPP defense. If these courts find the SLAPP defense unwarranted, how will such ruling affect the rulings by the green courts themselves in the environmental case?

VII. Conclusion

The Green Rules is a good step towards improving environmental litigation. It may be successful in dealing with some of the difficulties faced by litigants in environmental protection cases. If implemented strictly, the Green Rules not only provides for an inexpensive but also an expeditious remedy to the public. It also eases the burden of proof against those suffering from environmental harm.

However, there are some red flags which must be the subject of serious reconsideration. For example, it does not affect the rule on standing to sue, and environmentalists may argue that it really does not go far enough. A question may also be raised about the wisdom in making it the responsibility of courts to monitor environmental compliance.
A few years from now, perhaps in 2020 or a period of 10 years after its promulgation, it may be necessary to evaluate the effectiveness of the Green Rules in facilitating environmental litigation and promoting the fundamental right to a “balanced and healthful ecology” of the people.

– o0o –

* Cite as Rommel J. Casis, Green Rules: Gray Areas and Red Flags, 86 PHIL. L.J. 765, (page cited) (2012). An earlier version of this paper was written for a Mandatory Continuing Legal Education lecture by the author for the UP Law Center.

** Assistant Professor, College of Law, University of the Philippines Diliman; LL.M., Columbia Law School, Columbia University; LL.B., College of Law, University of the Philippines; B.A. Political Science, College of Social Sciences and Philosophy, University of the Philippines.

3 Dean Marvic M.V.F. Leonen was an original member of the Technical Working Group while Prof. Rommel J. Casis was his representative in the meetings. Thus, this author was fortunate to have been part of this TWG and witnessed the evolution of the Green Rules from the very first meeting until its completion.

4 Program for the Forum on Environmental Justice: Upholding the Right to a Balanced and Healthful Ecology, April 16-17, 2009.

5 RATIONALE TO THE RULES OF PROCEDURE ON ENVIRONMENTAL CASES 97 [hereinafter "RATIONALE"], available at http://sc.judiciary.gov.ph/Environmental_ Rationale.pdf (or here).

6 Global Judges Symposium on Sustainable Development and the Role of Law, at http://www.unep.org/law/symposium/Judges_symposium.htm.

7 Johannesburg Principles on the Role of Law and Sustainable Development, adopted at the Global Judges Symposium held in Johannesburg, South Africa, August 18-20, 2002, available at http://www.unep.org/law/symposium/Principles.htm.

10 ANNOTATION TO THE RULES OF PROCEDURE FOR ENVIRONMENTAL CASES 107, available at http://sc.judiciary.gov.ph/Environmental_Annotation.pdf [hereinafter "ANNOTATION"] (or here).

11 But this may be problematic later on if a litigant files a pleading not in § 1 but also not in § 2. In such a case, the court should rule that the pleading is prohibited.

12 Rule 4, § 1 states:

SEC. 1. Continuous trial.—The judge shall conduct continuous trial which shall not exceed two (2) months from the date of the issuance of the pre-trial order.

Before the expiration of the two-month period, the judge may ask the Supreme Court for the extension of the trial period for justifiable cause.

13 Rule 4, § 2 states:

SEC. 2. Affidavits in lieu of direct examination.—In lieu of direct examination, affidavits marked during the pre-trial shall be presented as direct examination of affiants subject to cross- examination by the adverse party.

14 Rule 4, § 3 states:

SEC. 3. One-day examination of witness rule.—The court shall strictly adhere to the rule that a witness has to be fully examined in one (1) day, subject to the court’s discretion of extending the examination for justifiable reason. After the presentation of the last witness, only oral offer of evidence shall be allowed, and the opposing party shall immediately interpose his objections. The judge shall forthwith rule on the offer of evidence in open court.

15 Rule 4, § 4 states:

SEC. 4. Submission of case for decision; filing of memoranda.— After the last party has rested its case, the court shall issue an order submitting the case for decision.

The court may require the parties to submit their respective memoranda, if possible in electronic form, within a non-extendible period of thirty (30) days from the date the case is submitted for decision.

The court shall have a period of sixty (60) days to decide the case from the date the case is submitted for decision.

16 Rule 4, § 5 states:

SEC. 5.Period to try and decide.—The court shall have a period of one (1) year from the filing of the complaint to try and decide the case. Before the expiration of the one-year period, the court may petition the Supreme Court for the extension of the period for justifiable cause.

30 Rep. Act No. 9262, Anti-Violence Against Women and Their Children Act (2004).

31 Rule 13, § 2.

32 Rule 6, § 2 states:

SEC. 2. SLAPP as a defense; how alleged.—In a SLAPP filed against a person involved in the enforcement of environmental laws, protection of the environment, or assertion of environmental rights, the defendant may file an answer interposing as a defense that the case is a SLAPP and shall be supported by documents, affidavits, papers and other evidence; and, by way of counterclaim, pray for damages, attorney’s fees and costs of suit.

The court shall direct the plaintiff or adverse party to file an opposition showing the suit is not a SLAPP, attaching evidence in support thereof, within a non-extendible period of five (5) days from receipt of notice that an answer has been filed.

The defense of a SLAPP shall be set for hearing by the court after issuance of the order to file an opposition within fifteen (15) days from filing of the comment or the lapse of the period.

33 Id.

34 Id.

35 Id.

36 Id.

37 Rule 6, § 3 states: SEC. 3. Summary hearing.—The hearing on the defense of a SLAPP shall be summary in nature. The parties must submit all available evidence in support of their respective positions. The party seeking the dismissal of the case must prove by substantial evidence that his acts for the enforcement of environmental law is a legitimate action for the protection, preservation and rehabilitation of the environment. The party filing the action assailed as a SLAPP shall prove by preponderance of evidence that the action is not a SLAPP and is a valid claim.

38 Rule 19, § 1 states:

SEC. 1. Motion to dismiss.—Upon the filing of an information in court and before arraignment, the accused may file a motion to dismiss on the ground that the criminal action is a SLAPP.

43 Pres. Dec. No. 605, Banning the Issuance by Courts of Preliminary Injunctions in Cases Involving Concessions, Licenses, and Other Permits Issued by Public Administrative Officials or Bodies for the Exploitation of Natural Resources (1974).

44 Pres. Dec. No. 1818, Prohibiting Courts from Issuing Restraining Orders or Preliminary Injunction in Cases Involving Infrastructure and Natural Resource Development Projects of, and Public Utilities Operated by the Government (1981).

45 Referring to P.D. No. 605.

46 Pres. Dec. No. 1818, 2nd whereas clause.

47 Rep. Act No. 8975, An Act to Ensure the Expeditious Implementation and Completion of Government Infrastructure Projects by Prohibiting Lower Courts from Issuing Temporary Restraining Orders, Preliminary Injunctions or Preliminary Mandatory Injunctions, Providing Penalties for Violations Thereof, and for Other Purposes (2000).

48 ANNOTATION, supra note 10, at 116.

49 Id. at 116-117.

50 Id. at 133.

51 GREEN RULE BOOK supra note 8, at 34.

52 Rule 7, § 1 of the Green Rules expressly provides that the writ of kalikasan “is a remedy available…[in cases] involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.” (emphasis, alteration supplied)

60 It may be remarked that a class suit is different from a citizen’s suit. A class suit is defined in Rule 3, § 12 of the Rules of Court which provides “[w]hen the subject matter of the controversy is one of common or general interest to many persons so numerous that it is impracticable to join all as parties, a number of them which the court finds to be sufficiently numerous and representative as to fully protect the interests of all concerned may sue or defend for the benefit of all. Any party in interest shall have the right to intervene to protect his individual interest.” (emphases supplied). See Newsweek, Inc. v. Intermediate Appellate Court, G.R. No. 63559, 142 SCRA 171, May 30, 1986, MVRS Publications, Inc. v. Islamic Da’wah Council of the Philippines, Inc., G.R. No. 135306, 396 SCRA 210, January 28, 2003 (for elements of a class suit). On the other hand, citizen’s suits are provided for in several substantive laws regarding the environment, see, e.g., R.A. No. 8749, § 41, R.A. No. 9003, § 52, and in Rule 2, § 5 of the Green Rules. It may be observed that the requisites for a citizen’s suit are more relaxed than those of a class suit.

PROTECTING THE CHILDREN OF THE LOST

The International Convention for the Protection of All Persons from Enforced Disappearance1 is one of the nine core human rights treaties of the United Nations.2 It contains an absolute prohibition on enforced disappearance, creates conditions to help prevent its occurrence and establishes the Committee on Enforced Disappearances which monitors the implementation of the Convention through a variety of procedures.3 Article 25 of the Convention specifically addresses the related violation of wrongful removal of children.4

This essay critically examines this provision and the extent to which it promotes children’s rights. It also considers the domestic situation and how this protection is implemented in the Philippines. It concludes with an assessment of the level of protection that both article 25 and existing Philippine laws provide and suggests that ratification of the Convention and the adoption of appropriate domestic legislation are the way forward.

Enforced Disappearance

The wrongful removal of children is a violation intimately linked to enforced disappearance. The latter is a tool of repression widely regarded as one of the cruelest forms of human rights violations,5 where the victims are not just the persons who disappeared, but the family members who are denied the truth about their relatives, as well.

The concept of enforced disappearance is defined, in similar manner, in four different international documents. These documents include the UN Declaration on the Protection of All Persons from Enforced Disappearance,6 the Inter-American Convention on Forced Disappearance of Persons,7 the Rome Statute8 and the International Convention for the Protection of All Persons from Enforced Disappearance.9 According to these documents, enforced disappearance has three common elements:

(1) involvement of government officials;
(2) deprivation of liberty;and
(3) refusal by the government to acknowledge the deprivation of liberty.

The perpetrators of enforced disappearances are generally agents of the State. Méndez and Vivanco10 describe them as mostly forming part of specialized units that make up highly secret bodies within the armed or security forces. These bodies typically have their own chain of command that directs them which ensures that its activities are not interfered with by governmental authorities. They arrest the victims and interrogate and torture them at secret detention centers free from judicial or other intervention. Some victims survive, but most do not. As soon as victims stop providing intelligence, the authorities kill them and dispose of the corpse in a way that ensures continued deniability.11 Cassese12 observes that enforced disappearances are often associated with “the pursuit of power by terror and elimination of political opposition.” Brody and González13 point out that disappeared persons are generally political opponents and members of grass-roots organizations who, as a consequence of the enforced disappearance, become subject to the whim of their captors. Aside from physical torture, psychological and sociological literature is instructive of how an enforced disappearance causes a greater incidence of affective disorders, pathological depressive and non-depressive grief, anxiety and post-traumatic stress disorder and greater degrees of unconscious emotional disturbance over an extended period than extrajudicial killings.14

There has been a growing recognition of the nature of the enforced disappearance. In Resolution No. 33/173 entitled “Disappeared Persons” adopted on December 20, 1978, the UN General Assembly stated that it was “deeply moved by the anguish and sorrow” of disappeared persons’ relatives and “deeply concerned by reports from various parts of the world” of enforced disappearances.15 Meanwhile, the UN Declaration on the Protection of All Persons from Enforced Disappearance states “that enforced disappearance undermines the deepest values of any society committed to respect for the rule of law, human rights and fundamental freedoms, and that the systematic practice of such acts is of the nature of a crime against humanity.”16 It also illustrates the growing recognition of the nature of enforced disappearance. It specifically cites the “extreme seriousness” of the enforced disappearance and explicitly guarantees the right of every person not to be subjected to an enforced disappearance.17

Wrongful Removal of Children

The wrongful removal of children is a violation that takes place in the specific context of an enforced disappearance. It happens when an enforced disappearance leaves children in the custody of persons other than those to whom custody belongs. Central to this violation is the concealment of the children’s true identity.

In its wake, the phenomenon of the enforced disappearance has spared neither pregnant women nor children.18 The Argentinian experience is illustrative of this matter. Between 1976 and 1983, Argentine military and police forces caused the disappearance of as many as 30,000 people, perceived as subversive to national security.19 These victims were kidnapped, tortured, and killed; and ultimately, their fate was hidden from their families and the world by burying their bodies in mass graves or throwing them into the sea.20 Many of these disappeared persons had young children when they were abducted or were pregnant women who gave birth to infants while in captivity.21 It is estimated that as many as 450 children of disappeared persons were given or sold to childless military or police families, or otherwise wrongfully adopted by families whose knowledge of their origins ranged from innocence to willful ignorance to guilt.22

The Philippines has had its own history of enforced disappearance and wrongful removal of children.23 The case involving the enforced disappearance of University of the Philippines students Karen Empeño and Sherlyn Cadapan is disturbing on a number of levels, not the least of which is Cadapan’s reported pregnancy during captivity.24 Apart from what her fate is now, her reported pregnancy raises questions about the possible outcome of her pregnancy and, if allowed to come to full term, the fate of her child.

The wrongful removal of children adds to the serious nature of the denial of the truth that accompanies an enforced disappearance. Such wrongful removal can destroy families systematically and comprehensively. As the drafters of the Disappearances Convention observe, this wrongful removal involves the deprivation of a child’s true identity in three situations: a) a child is subjected to an enforced disappearance; b) a child is detained with a parent subjected to an enforced disappearance; and c) a child is born to a disappeared mother during detention. The third situation has three components: (1) the failure to restore the child to the original family; (2) the manufacture of a false identity; and (3) the deprivation of the original family of their rights over the child.25

In the secrecy and lawlessness of an enforced disappearance, the disappeared person is at the complete mercy of the perpetrators, and children become commodities that these perpetrators can easily give away or sell. As McCrory26 states, the wrongful removal of children is “an especially disturbing practice.” Thus, in addition to the personal trauma, there are often highly complex legal matters especially when the child is brought up in another country from that in which he or she was born.27

Disappearances Convention

The Disappearances Convention aims to address enforced disappearance and the range of issues attendant with it, among which is the wrongful removal of children. With regard to the wrongful removal of children, Article 25 of the Convention states:

1. Each State Party shall take the necessary measures to prevent and punish under its criminal law:

(a) The wrongful removal of children who are subjected to enforced disappearance, children whose father, mother or legal guardian is subjected to enforced disappearance or children born during the captivity of a mother subjected to enforced disappearance;

(b) The falsification, concealment or destruction of documents attesting to the true identity of the children referred to in subparagraph (a) above.

2. Each State Party shall take the necessary measures to search for and identify the children referred to in paragraph 1 (a) of this article and to return them to their families of origin, in accordance with legal procedures and applicable international agreements.

3. States Parties shall assist one another in searching for, identifying and locating the children referred to in paragraph 1 (a) of this article.

4. Given the need to protect the best interests of the children referred to in paragraph 1 (a) of this article and their right to preserve, or to have re-established, their identity, including their nationality, name and family relations as recognized by law, States Parties which recognize a system of adoption or other form of placement of children shall have legal procedures in place to review the adoption or placement procedure, and, where appropriate, to annul any adoption or placement of children that originated in an enforced disappearance.

5. In all cases, and in particular in all matters relating to this article, the best interests of the child shall be a primary consideration, and a child who is capable of forming his or her own views shall have the right to express those views freely, the views of the child being given due weight in accordance with the age and maturity of the child.28

Thus, for there to be wrongful removal of children in accordance with Article 25, two elements must concur:

(1) Children have been subjected to enforced disappearance; (2) the children’s father, mother or legal guardian is subjected to enforced disappearance; or (3) children are born during the captivity of a mother subjected to enforced disappearance.

(2) The documents attesting to the true identity of these children are falsified, concealed or destroyed.

Article 25 also creates a range of obligations on States parties to the Convention. Some of these include the obligation to: (1) Prevent and punish the wrongful removal of children under their criminal law; (2) Search for and identify children wrongfully removed and return them to their families of origin, in accordance with legal procedures and applicable international agreements; (3) Assist other States parties in searching for, identifying and locating wrongfully removed children; (4) Have legal procedures in place to review the adoption or placement procedure, and, where appropriate, to annul any adoption or placement of children that originated in an enforced disappearance; and (5) Take into account the best interests of the child as a primary consideration, and recognize the right of a child who is capable of forming his or her own views to express those views freely, the views of the child being given due weight in accordance with the age and maturity of the child.

The drafters of the Convention took note of the importance of addressing the issue of the wrongful removal of children. They appreciated the need to deal with situations in which the perpetrators of enforced disappearances appropriate disappeared children or the children of disappeared persons, as well as situations in which children are born while their mothers are the victims of enforced disappearances.29 As observed, these children are subsequently given up for adoption and lose their identity.30 Thus, the drafters sought among others, to incorporate an obligation on State parties to prevent and punish the wrongful removal of children31 with concomitant criminal sanctions,32 facilitate the children’s return to the family of origin,33 make provision for international cooperation mechanisms to locate and return children wrongfully removed,34 deal with the question of the civil status of children wrongfully removed and the possibility of reviewing adoptions,35 and consider the primary standard of the best interests of the child.36

The Committee on Enforced Disappearances, in interpreting the Convention, with its reporting, individual communications, inter-state communications, urgent, inquiry and referral procedures,37 is in a unique position to give further life and meaning to Article 25. Other treaty- and charter-based human rights bodies are also in a position to elaborate on and develop the prohibition of wrongful removal of children even more. For instance, the Committee against Torture published a draft General Comment that aims to explain and clarify the obligations of States parties under Article 14 of the Convention against Torture to “ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible.”38 Paragraph 15 of this draft General Comment states:

Satisfaction and the right to truth

15. Satisfaction should include, by way of and in addition to the obligations of investigation and criminal prosecution under articles 12 and 13 of the Convention, any or all of the following remedies: “effective measures aimed at the cessation of continuing violations; verification of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further harm or threaten the safety and interests of the victim, the victim’s relatives, witnesses, or persons who have intervened to assist the victim or prevent the occurrence of further violations; the search for the whereabouts of the disappeared, for the identities of the children abducted, and for the bodies of those killed, and assistance in the recovery, identification and reburial of the bodies in accordance with the expressed or presumed wish of the victims, or the cultural practices of the families and communities; an official declaration or a judicial decision restoring the dignity, the reputation and the rights of the victim and of persons closely connected with the victim; public apology, including acknowledgement of the facts and acceptance of responsibility; judicial and administrative sanctions against persons liable for the violations; commemorations and tributes to the victims; inclusion of an accurate account of the violations that occurred in international human rights law and international humanitarian law training and in educational material at all levels.

However, while the draft General Comment requires a search for the “identities of the children abducted,” it does not build and add substantively on the prohibition of the wrongful removal of children. It seems that the Committee against Torture has thus far missed out on an important opportunity to make a more substantive contribution to the development of this prohibition in international human rights law.

Philippine Laws

Philippine laws have only recently started addressing the matter of the enforced disappearance and the wrongful removal of children. There is, as yet, no domestic law clearly defining and punishing these human rights violations. While an assortment of laws may be brought to bear upon them, these laws still fall short of complete recognition of the rights not to be subjected to the enforced disappearance and to the wrongful removal of children.39
The 1987 Philippine Constitution similarly makes no explicit reference to these violations. However, the protection can be inferred from its prohibition against “secret detention places, solitary, incommunicado, or other similar forms of detention.”40 Moreover, the right to life and liberty,41 the right against unreasonable searches and seizures,42 the right not to be subjected to torture,43 the right to family solidarity,44 and the right of children to special protection from all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development45 further gives protection against these specific violations.

Meanwhile, criminal statutes fail to completely comprehend the nature and effect of enforced disappearance and wrongful removal of children.46 More specifically, the definitions of arbitrary detention, kidnapping and simulation of birth under the Revised Penal Code of the Philippines are inadequate in addressing enforced disappearances and the wrongful removal of children.

With regard to arbitrary detention, it is limited in its scope since it is only confined to a public officer who “without legal grounds, detains a person.”47 It does not deal to any extent with the refusal by the government to acknowledge the deprivation of liberty, a central element of the enforced disappearance. Kidnapping is similarly confined in its scope to a person who “detains another.”48 It likewise does not deal to any extent with the element of refusal by the government to acknowledge the deprivation of liberty. Besides, the perpetrator of a kidnapping is a “private individual,” unlike the perpetrator of an enforced disappearance who is an agent of the State. Lastly, the definition of simulation of births under Article 347 of the Penal Code does not take into account that the children have been subjected to enforced disappearance; or that their father, mother or legal guardian has been subjected to enforced disappearance; or they have been born during the captivity of a mother subjected to enforced disappearance.
Recent legislative enactments are likewise lacking in their efforts to address the occurrence of enforced disappearances and wrongful removal of children. Without laying down rules specific to these serious forms of harms, the new laws nonetheless provide a measure of protection. The Philippine Anti-Torture Act of 200949 defines and punishes torture,50 including torture against children51 and “confinement in solitary cells or secret detention places.”52 The Philippine Act on Crimes against International Humanitarian Law, Genocide, and Other Crimes against Humanity,53 defines and punishes the enforced disappearance54 as a crime against humanity.55

In the absence of a law specifically dealing with the enforced disappearance and wrongful removal of children, the case involving the enforced disappearance of Sherlyn Cadapan, who was reportedly pregnant at the time of her disappearance, and Karen Empeño, led to the filing of kidnapping charges against M/Gen. Jovito S. Palparan,Jr. (ret), Lt. Col. Felipe G. Anotado, M/Sgt. Rizal C. Hilario and S/Sgt. Edgardo L. Osorio.56 Other charges, which included Rape, Serious Physical Injuries, Arbitrary Detention, Maltreatment of Prisoners, Grave Threats, Grave Coercion, Violation of Republic Act No. 7438,57 were no longer filed for a variety of reasons including lack of evidence. No charge relating to Cadapan’s reported pregnancy was considered58 however, presumably on account of the difficulty of proof.

The Philippine Rule on the Writ of Amparo,59 and the Rule on the Writ of Habeas Data,60 are not meant to address the enforced disappearance and the wrongful removal of children in a comprehensive manner. However, they provide additional protection against these violations.61 The Rule on the Writ of Amparo specifically applies to cases of extrajudicial killings and enforced disappearances and makes possible an order requiring a respondent government official to file a return explaining the steps or actions taken to determine the fate of the disappeared and the persons responsible, to recover and preserve evidence which may aid in the prosecution of the persons responsible, to identify witnesses and obtain statements from them, to determine the cause, manner, location and time of disappearance as well as any pattern or practice that may have brought about it, to identify and apprehend the persons involved, and to bring the suspected offenders before a competent court.62 It also offers different forms of interim relief such as a temporary protection order, inspection order, production order and witness protection order.63

For its part, the Rule on the Writ of Habeas Data makes possible an order requiring a respondent government official to file a return containing these matters:

(i) A disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection;

(ii) The steps or actions taken by the respondent to ensure the security and confidentiality of the data or information; and

(iii) The currency and accuracy of the data or information held.64 If the allegations in the Petition for a Writ of Habeas Data are proven by substantial evidence, a court may order the deletion, destruction, or rectification of the erroneous data or information and grant other relevant reliefs as may be just and equitable.65

In Boac v. Cadapan,66 the court gave due course to an Amparo Petition involving Sherlyn Cadapan and Karen Empeño. While it ordered the release of the purported victims from detention, the failure of the respondent government officials to comply with the order of release made the victory of the victims’ families in the case an empty one. The decision also failed to address Cadapan’s alleged pregnancy. Furthermore, it demonstrated the limitation on the nature and scope of the relief provided by the Rule on the Writ of Amparo on account of its failure to surface the disappeared persons concerned and to sanction those responsible.

Conclusion

Article 25 of the Disappearances Convention is an advance in the law. It defines the wrongful removal of children and creates obligations on States parties to prevent and punish it as well as to take the appropriate measures to correct it. This provision is an important initial step that the Committee on Enforced Disappearances and other human rights bodies can further develop. As the drafters of the Disappearances Convention appreciated, a provision on the protection of children is an essential part of the Convention.67 During the drafting sessions, the Mexican delegation, speaking also on behalf of the Group of Latin American and Caribbean States (GRULAC), went further by welcoming the manner by which the Convention tackled the problem of child victims of enforced disappearance as a significant achievement.68

In contrast, Philippine laws dealing with the enforced disappearance and the wrongful removal of children are considerably less developed. The relevant domestic laws are not sufficiently particularized to address these violations. The absence of a statute defining and punishing them highlights the limitations of the law. While there is a growing recognition that these violations impinge on a range of rights guaranteed under Philippine laws, there remains less than full recognition of the rights not to be subjected to the enforced disappearance and to the wrongful removal of children.

The Disappearances Convention, with its express prohibition of the enforced disappearance and wrongful removal of children, represents a promising response to these violations. In providing for the manner by which these violations should be addressed from a legal perspective, it sets standards by which government officials should inform their responsibilities. There is potential for the development of Philippine laws, in accordance with the provisions of this Convention. Beyond a fundamental review of the relevant domestic laws, the way forward for the Philippines would include ratification of the Convention and adoption of legislation enforcing the rights guaranteed by it.

** Ricardo A. Sunga III, LL.B. (University of the Philippines) and LL.M. by Research (University of New South Wales), is a professorial lecturer at the College of Law of the University of the Philippines and Regional Coordinator for the National Capital Region of the Free Legal Assistance Group of the Philippines. His thesis ‘On Locating the Rights of the Lost’ for which UNSW awarded the LLM, explores the extent to which international human rights law implements the right to know the truth about disappeared and missing persons.

1 International Convention for the Protection of All Persons from Enforced Disappearance, Dec. 20, 2006, art. 24(2) GA Res. 61/177 available at http://www.unhcr.org/refworld/docid/47fdfaeb0.html (Date last visited: Mar. 7, 2012) or download here. The Convention was opened for signature on Feb.6, 2007 and entered into force on Dec.23, 2010. (Hereinafter “Disappearances Convention”)

2 The others are the International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, International Convention on the Elimination of All Forms of Racial Discrimination, Convention on the Elimination of All Forms of Discrimination against Women, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Convention on the Rights of the Child, International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Convention of the Rights of Persons with Disabilities.

3 I have commented on the substantive and remedial provisions of the Disappearances Convention in my thesis On Locating the Rights of the Lost available at http://unsworks.unsw.edu.au/fapi/datastream/unsworks:9845/SOURCE02 (Date last visited: Feb. 8, 2012).

6 Declaration on the Protection of All Persons from Enforced Disappearance, GA Res 47/133 of Dec. 18, 1992, 47th Sess., UN Doc A/RES/47/133, preamble (which provides that “persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government, or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law”).

7 Inter-American Convention on Forced Disappearance of Persons, adopted Jun. 9, 1994, O.A.S. Doc. OEA/Ser.P/AG/Doc 3114/94, art. 2 (which provides that “forced disappearance is considered to be the act of depriving a person or persons of his or their freedom, in whatever way, perpetrated by agents of the state or by persons or groups of persons acting with the authorization, support, or acquiescence of the state, followed by an absence of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees”).

8 Rome Statute, Jul. 17, 1998, 2187 U.N.T.S. 3, art. 7(2) (which provides that “the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period”).

9 Disappearances Convention, art. 2 (which provides that “the arrest, detention, abduction or other form of deprivation of liberty committed by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law”).

24 What Went Before: Abduction of UP students Karen Empeño and Sherlyn Cadapan, Dec. 17, 2011 available at http://newsinfo.inquirer.net/112599/what-went-before-abduction-of-up- students-karen-empeno-and-sherlyn-cadapan (Date last visited: Mar. 26, 2012). See also Boac v. Cadapan, G.R. No. 184461, May 31, 2011.

25 Commission on Human Rights, 60th Sess., Report of the Intersessional Open-Ended Working Group to Elaborate a Draft Legally Binding Normative Instrument for the Protection of all Persons from Enforced Disappearance, UN Doc E/CN.4/2004/59, at 24, ¶ 139 (Feb. 23, 2004).

26 Susan McCrory, The International Convention for the Protection of All Persons from Enforced Disappearance, 7 HUM. RTS. L. REV. 545, 559 (2007).

27 Id.

28 Disappearances Convention, art. 25.

29 Commission on Human Rights, 59th Sess., Report of the Intersessional Open-Ended Working Group to Elaborate a Draft Legally Binding Normative Instrument for the Protection of all Persons from Enforced Disappearance, UN Doc E/CN.4/2003/71, at 18, ¶ 89 (Feb. 12, 2003).

30 Id.

31 Id.

32 Commission on Human Rights, 61st Sess., Report of the Intersessional Open-Ended Working Group to Elaborate a Draft Legally Binding Normative Instrument for the Protection of all Persons from Enforced Disappearance, UN Doc E/CN.4/2005/66, at 29, ¶ 116 (Mar. 10, 2005).

38 The Committee against Torture invited comments on this draft(referred to as a Working Document) available at http://www2.ohchr.org/english/bodies/cat/ comments_article14.htm (date last visited: Mar. 26, 2012). The Committee against Torture is the principal organ established by the Convention to oversee its implementation. See Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, art 17, 1465 UNTS 85. The Convention entered into force on Jun. 26, 1987 and the Philippines became ratified the Convention in June 1986. The Philippines is a party to this Convention. The Committee against Torture is empowered to issue General Comments as part of its reporting procedure with a view to elucidate the text of the Convention. Accordingly, this power can leave little room for “loopholes and disingenuous interpretations.” See Antonio Cassese, A New Approach to Human Rights: The European Convention for the Prevention of Torture, 83 AM. J. INT’L L. 121, 129 (1989).

39 For more information on this matter, see International Convention for the Protection of All Persons from Enforced Disappearance: Prospects and Challenges, a policy paper of the Institute of Human Rights of the University of the Philippines Law Center. I served as the lead writer of the paper.

40 CONST. art. III, § 12(2). In carrying out an enforced disappearance and in wrongfully removing children, perpetrators resort to these forms of detention.

46 See Kirsten Anderson, How Effective Is the International Convention for the Protection of All Persons from Enforced Disappearance Likely to Be in Holding Individuals Criminally Responsible for Acts of Enforced Disappearance, 7 MELB. J. INT’L L. 245, 265 (2006).

47 REV. PEN. CODE, art. 124.

48 REV. PEN. CODE, art. 267.

49 Rep. Act No. 9745 (2009).

50 The Committee against Torture considers the enforced disappearance as a form of torture. See Committee against Torture, Conclusions and Recommendations of the Committee against Torture: United States of America, UN Doc CAT/C/USA/CO/2, at 4, ¶18 (Jul. 25, 2006). For a similar finding that the enforced disappearance is a violation of the Convention against Torture, see Committee against Torture, Concluding Observations of the Committee against Torture: El Salvador, UN Doc CAT/C/SLV/CO/2, (Dec. 9, 2009); Committee against Torture, Concluding Observations of the Committee against Torture: Syrian Arab Republic, UN Doc CAT/C/SYR/CO/1 (May 25, 2010). See also Committee against Torture, Summary Record of the First Part (Public) of the 870th Meeting , UN Doc CAT/C/SR.870 (Apr. 29, 2009). For the Concluding Observations on Chad, see Committee against Torture, Concluding Observations of the Committee against Torture: Chad , UN Doc CAT/C/TCD/CO/1 (Jun. 4,2009).

52 § 4(b)(3) of the Philippine Anti-Torture Act of 2009 considers it a form of “Mental/Psychological Torture …calculated to affect or confuse the mind and/or undermine a person’s dignity and morale.”

53 Rep. Act No. 9581 (2009).

54 Defined in § 3(g) as “the arrest, detention, or abduction of persons by, or with the authorization support or acquiescence of, a State or a political organization followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing from the protection of the law for a prolonged period of time.”

55 To be punishable, it must be proven additionally under § 6 of Rep. Act No. 9581 that the enforced disappearance is “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”

61 But the Free Legal Assistance Group (FLAG) observes wide variances in the relief granted on account of a “lack of a common understanding of international human rights law, substantial evidence, the shifting of the burden of proof, extraordinary diligence, and the archival/dismissal of Amparo cases.” FLAG points out the need to orient properly the Bench on Amparo and to strengthen the Amparo Rule by setting appropriate standards, prescribing clear procedures, using companion rules or guidelines, and establishing an effective enforcement and monitoring system. See Letter of the Free Legal Assistance Group (FLAG) urging the Supreme Court to revisit and enhance the Rule on the Writ of Amparo signed by Maria Socorro Diokno and dated Mar. 23, 2009.

62 RULE ON THE WRIT OF AMPARO, § 9(b), 9(d)(vi).

63 § 14.

64 RULE ON THE WRIT OF HABEAS DATA, § 10(3)(b).

65 § 16.

66 G.R. No. 184461, May 31, 2011.

67 Supra note 29, UN Doc E/CN.4/2003/71, at 7 (Feb. 12, 2003).

68 Commission on Human Rights, 62nd Sess., Report of the Intersessional Open-Ended Working Group to Elaborate a Draft Legally Binding Normative Instrument for the Protection of all Persons from Enforced Disappearance, UN Doc E/CN.4/2006/57, at 51 (Feb. 2, 2006).

THE DISPUTE OVER EXTRAJUDICIAL KILLINGS: THE NEED TO DEFINE EXTRAJUDICIAL KILLINGS AS STATE-SPONSORED ACTS

For several years, the Philippines has faced significant criticism from the international community, human rights groups and local civil society for the deaths of political activists, journalists and others that are the apparent work of elements of the military and the national police. Although the government has publicly denounced such killings, elements of the government have also repeatedly argued that extrajudicial killings should also comprise killings by non-state actors—specifically those by rebel groups. This has led to a dispute over how the State and civil society should define extrajudicial killings. This article argues that efforts against extrajudicial killings should rely on a definition of such killings as acts that are attributable to the State. Such definition would be consistent with principles of state responsibility under international human rights law. Guaranteeing human rights requires that acts of the State be treated distinctly from those of non-State actors. Moreover, treating acts by States distinct from those not by States serves the important practical purpose of facilitating prosecution by allowing for remedies that are tailored for state acts. As an illustration, this article draws on the jurisprudence of the Inter-American Court of Human Rights to propose that victims or their representatives be able to obtain civil redress under an altered burden of proof.

INTRODUCTION

The killing and enforced disappearances of political activists have long been part of modern Philippine life—certainly ever since the administration of President Marcos, during which period the Philippines was repeatedly criticized for the deaths of activists from the political left.1 More recently during the administration of President Arroyo onward, from 2001 to the present, extrajudicial killings and enforced disappearances reemerged in Philippine public consciousness as a drastic rise in their number was reported.2 Reports conflict on the number of victims.3 Some suggest that the number cannot be known.4 Most estimates, though, count them in the hundreds.5

Many credit an increase of killings during the Arroyo administration to its professed goal to eradicate the New People’s Army (NPA)—the Communist Party of the Philippines’ (CPP) armed wing.6 The NPA has been active since the 1970s and has engaged in on-again, off-again peace negotiations with the government since the administration of President Corazon Aquino.7 The Arroyo administration’s anti-insurgency campaign swept broadly, targeting not only armed insurgents but also representatives from leftist political parties in the House of Representatives and members of civil society organizations that the military and police labeled, largely without substantiation, as insurgent fronts.8 In apparent accordance with the administration’s determination that the political left was composed of enemies of the State, numerous organizers, activists, low-level elected officials, leaders of indigenous tribes, and even priests have been assassinated.9 Regrettably, extrajudicial killings have continued even after the end of the Arroyo administration and the election of ‘Noynoy’ Aquino.10

Reports have identified members of the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP) as the largest bloc ofperpetrators.11 For its part,the government laid the blame largely upon the NPA, arguing that the deaths were the result of internal purges.12 Both President Arroyo’s 2006 Melo Commission and Philip Alston, the United Nations’ former Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, rejected that theory.13 But despite increased international scrutiny, few have been prosecuted, and almost no one has been convicted.14 Impunity for perpetrators has led international aid groups and civil society organizations to attempt to find ways to improve capacity in government to successfully investigate and prosecute human rights violations.15

But a persistent obstacle in developing and implementing strategies against extrajudicial killings is disagreement over what constitutes an extrajudicial killing in the first place—one of the principal obstacles being whether measures against extrajudicial killings, or whatever such killings are called,16 should be targeted at those by non-State actors such as the CPP-NPA in addition to State-sponsored killings. The military’s favored position is that extrajudicial killings should comprise both State and non-State acts.17 The Supreme Court seems to support the view that including killings by both the State and non-State actors as extra-judicial killings would be ‘more balanced,’ and has included private parties and the State as potential respondents to its new writs of amparo and habeas data.18 But civil society working groups19 and Congress have not yet acted definitively to define extrajudicial killings. Some may be wary that the military’s preference for the inclusion of acts by groups like the NPA would serve only to blunt efforts at investigating military abuses —as prior compromises have done.20

The conflict over what constitutes an extrajudicial killing has meant that, despite the persistence of the problem, no legislation defines what it is. The absence of a uniform and accepted definition of the kinds of political killings occurring has served to create uncertainty among those seeking to end such acts. For instance, even though President Benigno Aquino III’s administration ordered the creation of a Department of Justice task force to address killings and enforced disappearances,21 no guidelines have been issued that define what an extrajudicial killing is, leaving prosecutors in the dark as to the scope of what kinds of killings should be addressed as such. And uncertainty over the numbers of victims is the result, in part, of various sectors’ conflicting definitions over what deaths count.

This article proposes that the government define extrajudicial killings as killings for which the State is responsible instead of defining them as acts committed by either State or non-State actors. Such a definition would be consonant with how international human rights law has come to define the spectrum of State responsibilities towards citizens and serve important practical purposes. Part I of this article provides a brief history of extrajudicial killings in the Philippines from the Marcos administration to the present and discusses responses to extrajudicial killings by the Philippine government. Part I also outlines the Supreme Court’s decision in 2007 to include killings by non- State actors as possible extralegal killings under its new writ of amparo. Part II argues that the Supreme Court’s interpretation of international human rights law with regard to whether non-State actors could be responsible for extrajudicial killings was erroneous. It does so by providing an overview of the history of the early development in the 1980s of the human rights prohibition against summary or arbitrary executions and describing the emerging consensus during that period on the nature of extrajudicial killings. The reports of the Special Rapporteur on Summary and Arbitrary Executions confirmed human rights organizations’ characterization of extrajudicial killings as primarily State-sponsored acts with political motivations.

Part III then explains that although there is no international instrument that expressly defines an extrajudicial killing as a State act, such a definition is in accordance with the international understanding of the nature of extrajudicial killings and with State responsibility for the specific harms imposed upon victims when it kills unlawfully. Finally, Part IV responds to arguments that measures on extrajudicial killings should treat killings by State and non-State actors without distinction on the grounds that not doing so would be to suggest that armed rebels are not culpable for human rights violations. Rather, treating acts by the State distinctly does not mean granting impunity to non-State actors because they would remain subject to international humanitarian and criminal law. Moreover, treating State actors distinctly may permit the fashioning of remedies that would be more effective at providing redress.

To that end, Part IV suggests legislatives measures that may be taken through which civil compensation for victims of extrajudicial killings and their families may be provided more easily. Relying on the Inter-American Court of Human Rights’ approach to extrajudicial killings and enforced disappearances, already accepted and used by the Supreme Court in its jurisprudence on the writ of amparo, this research paper suggests that a new civil cause of action be created or recognized specifically against State extrajudicial killings and enforced disappearances that lowers the burden of proof for plaintiffs when there has been a State practice to which a victim’s killing or disappearance can be connected. Should a plaintiff meet that standard, the burden would then be placed upon the government to demonstrate that it is not responsible for the human rights violation. The provision of this remedy would allow speedier access to compensation and vindication for victims by dispensing with the prior requirement of criminal conviction by proof of guilt beyond reasonable doubt against state actor defendants. This remedy could complement criminal proceedings against defendants or provide an alternative when criminal proceedings are unavailing. Most importantly, this proposed remedy would penalize rather than reward the obstruction of the investigation and prosecution of human rights cases.

I. THE CONFLICT OVER DEFINING EXTRAJUDICIAL KILLINGS IN THE PHILIPPINES

A. History of Extrajudicial Killings in the Philippines

1. Rise of Human Rights Violations during the Marcos Years

Extrajudicial killings and other gross human rights violations in the Philippines emerged as a public phenomenon during the administration of Ferdinand Marcos, especially during and after his imposition of martial law.22 Marcos declared martial law in 1972, lifting it in 1981.23 Although he justified martial law as a necessary response to armed Communist rebels, his assumption of emergency powers was also a systemic assault against his political opponents and the press as well as the beginning of an intensified counterinsurgency campaign against various rebel groups.24 Marcos’s political opponents were murdered, disappeared, and/or tortured on a vast scale—a practice that would intensify even after martial law was officially lifted.25 Targets included farmers, students, lawyers, journalists, tribal leaders, and academics.26 The practice of ‘salvaging’ became particularly widespread. ‘Salvaging’ refers to the disappearance and summary execution of accused subversives by the military with ‘their bodies left where they will eventually be found.’27

In addition to the targeting of political opponents and the media, the Marcos years saw an intensified counterinsurgency campaign that led to numerous civilian deaths in areas where the New People’s Army operated.28 In addition to those killed by the regular military were those killed by paramilitary forces armed, supported or tolerated by the government.29 These groups engaged in brigandage against civilians and other crimes like smuggling and murder for hire, in addition to being employed to kill the government’s political opponents.30 When the government was questioned about its or its adjuncts’ killings, its standard responses included claiming that victims had died while attempting to escape from government custody, in armed encounters with the military, or had been assassinated by Communists—claims that were usually rejected.31

The rise in human rights violations during the Marcos era has been traced to a number of factors: (1) official orders from Marcos to detain suspects without warrants and in extralegal safe houses; (2) the enculturation of graduates from the Philippine Military Academy in a culture of ‘torture, corruption and impunity’; (3) Marcos’ permissiveness with respect to military commanders’ pursuit of Communists combined with competition amongst commanders for his favor; (4) and the transformation of anti-insurgency efforts into underground campaigns ‘spreading terror through arrests, salvaging and torture.’32 Despite this strategy, the Marcos years saw a large increase in the numbers of armed rebel fighters and in their popular support.33 The New People’s Army was hardly innocent of murder either, dispatching ‘Sparrow’ death squads into the cities to engage in assassinations and engaging in a ‘purge’ in the 1980s in which it executed hundreds of its own members.34 However, even then, the government was seen as responsible for the bulk of human rights violations.35

2. Extrajudicial Killings after Marcos: From Aquino to Arroyo

The fall of the Marcos regime in 1986 ended neither armed rebellions nor the political killings and enforced disappearances that had come to be associated with it. The succeeding administration of Corazon Aquino continued the practice of arming paramilitary groups, this time known as Citizen’s Armed Forces Geographical Units or CAFGUs,36 under direct military command, to which many human rights violations, including extrajudicial killings, were attributed.37 Peace talks between the government and the CPP-NPA fell apart when the NPA rejected the Aquino administration’s peace overtures, including offers of amnesty and the release of Communist Party leaders, and when it continued its armed campaign against the government.38

In 1987, Aquino declared a ‘total war’ against the NPA, against which the CAFGUs were released.39 CAFGUs distributed ‘hit lists’ of intended targets of violence, warning victims that they would be killed if they did not cease political activities, and engaged in the actual murders of the victims.40 Victims of extrajudicial killings included human rights activists, lawyers, members of the Church, and others.41 Aside from the CAFGUS, elite intelligence units allegedly engaged in covert assassinations.42

Aquino’s successor, President Fidel Ramos improved the Philippines’ record on extrajudicial killings and other traditional human rights concerns.43 Nonetheless, they continued, with most cases attributable to the CAFGUs, the military, and the police.44 In particular, the Ramos administration’s Presidential Anti-Crime Commission, led by then-Vice President Joseph Estrada, became notorious for the summary executions of criminal suspects with official sanction and with impunity.45 The government did, however, reach a framework for peace negotiations with the Communist Party or National Democratic Front, decriminalized membership in the Communist Party,46 and entered into a Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law (‘CARHIHRL’) with the CPP-NDF.47

However, the CPP-NDF withdrew from peace talks in 2004 as President Gloria Macapagal-Arroyo’s administration was roiled by an electoral scandal that called her government’s legitimacy into question.48 The Arroyo administration, faced with military and popular discontent responded with a brief assumption of emergency powers directed against the CPP-NPA and discontented military officers.49 It then launched what it called an ‘endgame strategy’against the CPP-NPA.50 President Arroyo ordered the NPA’s defeat by the end of her second term in 2010.51 The campaign against the NPA swept broadly. Among others, the government included leftist members of Congress who had been elected to represent leftist political parties as enemies of the State.52 Outside Metro Manila, extrajudicial killings dramatically rose in number. According to one estimate, the number of cases of extrajudicial killings in the country, excluding journalists, tripled in 2005 and 2006, rising to 63 and 68 respectively from 22 in 2004.53

Special Rapporteur Philip Alston credited the rise to the government’s decision to try to end the insurgency by attacking leftist civil society organizations.54 Leftist activists and personalities, practically the sole victims of the killings,55 were found to have been listed on military and police lists called ‘orders of battle.’56 The manner of killing was generally uniform: victims would be shot by one or two assailants who would sometimes engage in the shooting while on motorcycles.57

Alston observed at least two different general typologies for such killings. In one province, the Armed Forces of the Philippines collect information about residents in particular areas to identify rebels or members of civil society organizations: those who cannot be persuaded to ‘surrender’ from their suspected affiliation then become targets for an extrajudicial execution.58 In another province, the AFP ‘systematically hunt[s]‘ down ‘leaders of leftist organizations’ using torture and interrogation to identify targets who are usually eventually killed.59

High-ranking officers, most notably then-General Jovito Palparan, Jr.,60 made public statements appearing to condone or approve of human rights violations. Palparan went on record to state, among others, that: ‘the killing of activists is necessary incident to conflict’; ‘I encourage people victimized by communist rebels to get even’; and ‘I cannot order my soldiers to kill, it’s their judgment call, they can do it on their own.’61 Palparan, a division-level commander, has been implicated as being directly involved in cases of enforced disappearances and extrajudicial killings.62

And allegation so fat least some official military involvement in extrajudicial killings have been supported with documentation.63 Other high-level administration officials, even Cabinet members, made statements apparently supportive of the scope of the government’s counter-insurgency strategy.64 But how high actual responsibility for the planning and ordering of extrajudicial killings goes remains unknown.65

President Arroyo and her chief military commanders have never been directly implicated in killings or disappearances.

The Arroyo administration’s response to the rise of extrajudicial killings was to publicly censure the killings and to organize task forces and commissions,66 though it saw little progress in terms of actual prosecutions and even less in terms of convictions.67 Nevertheless, the Arroyo administration did see some positive developments. Extrajudicial killings, excluding killings of journalists, declined in 2007 and after.68 The period also saw the finding of the government’s independent Melo Commission that the government was responsible for extrajudicial killings and the Supreme Court’s effort to address extrajudicial killings through the promulgation of the new writs of amparo and habeas data. In addition, the Arroyo period saw the passage of the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity69 and the Anti-Torture Act.70 Moreover, during the last few years of the administration, the country’s Commission on Human Rights took a more active role in investigation human rights violations.71 But the 2010 massacre in Maguindanao province of 58 people by gunmen connected to a political family allied with her administration severely damaged Arroyo’s reputation on human rights,72 as did continuing criticism from the Special Rapporteur and human rights groups concerning the effectiveness of the administration’s measures.73

i. Melo Commission

The Independent Commission to Address Media and Activist Killings, popularly known as the ‘Melo Commission’ after its chairman, retired Supreme Court Associate Justice Jose Melo, was created and tasked by President Arroyo to investigate extrajudicial killings in the wake of international criticism.74 The administration-backed commission was received skeptically by some civil society groups, including Karapatan, a human rights organization that refused to participate in the Commission’s proceedings.75 Regardless, the Melo Report made several significant, if controversial, findings. The Report concluded that there was no ‘official or sanctioned policy on the part of the military or its civilian superiors to resort to . . . illegal liquidations’ but that ‘there is certainly evidence pointing the finger of suspicion at some elements and personalities in the armed forces, in particular General Palparan, as responsible for an undetermined number of killings, by allowing, tolerating, and even encouraging the killings.’76 The Report also concluded that the military’s theory that extrajudicial killings were the work of an NPA purge ‘cannot be accorded credence.’77 The evidence, though, was deemed insufficient to ‘support a criminal conviction.’78

However, the Report speculated that military officers might be responsible for extrajudicial killings under a theory of command responsibility.79 Accordingly, the Report also recommended that legislation be passed to impose ‘strict chain-of-command responsibility’ with a focus solely on ‘extrajudicial killings and other offenses committed by personnel under their command, control or authority.’80 It can be said, therefore, that the Melo Report suggested an approach to extrajudicial killing, in the contemporary context of these acts in the Philippines, that would treat State acts distinctly from non-State acts. But legislation in accordance with this proposal is yet to be passed.81

ii. The Supreme Court

In 2007, the Supreme Court hosted a summit on extrajudicial executions.82 Following this summit, the Court promulgated the writs of amparo and habeas data, which were intended to serve as protective tools against both extrajudicial executions and enforced disappearances.83 The writ of amparo permits persons whose lives, liberty or security have been violated or are in danger of violation to seek protection or information from respondent parties.84 The writ of habeas data, on the other hand, permits the issuance of writs against violations to rights to privacy, liberty or security.85 Most importantly for the purposes of this article, both writs were expressly made available against private as well as public parties. In its annotation to the writ of amparo, the Supreme Court defined ‘extralegal killings’86 as ‘killings committed without due process of law, i.e. without legal safeguards or judicial proceedings.’87 Such killings comprised killings without due process ‘regardless of the motive.’88 This, the Court said, would be more ‘protective’ of rights to life and liberty than a writ available against the government alone.89

The idea that a writ against extrajudicial killings would be more protective of life than a writ tailored to government acts was not the only rationale proposed for the Supreme Court’s definition of extrajudicial killings as comprising both killings by State and non-State actors. Additional rationales, as recounted by two law clerks of then-Chief Justice Reynato Puno, included the interpretation of United Nations documents for the position that extrajudicial killings also comprised killings by non-State actors, and the argument that the extension of extrajudicial killings to non-State actors would be ‘more balanced’ and less ‘one-sided.’90 Indeed, according to them, the Supreme Court Committee on Rules deliberately adopted a definition of extralegal killing to be used in the writ of amparo that would include non-State actors so that the ‘definition of extrajudicial killings to include only government actors would be dissuaded.’91

Chief Justice Puno’s law clerks buttressed the argument that ‘extralegal killings’ should include those by non-State actors with citations to two United Nations documents. Importantly however, of the documents cited, one was to a document other than that which it was represented to be— a one page administrative note by the Secretariat of the Commission on Human Rights on social and economic rights rather than a report of the Commission’s Working Group on Enforced or Involuntary Disappearances as was represented,92 and the other was a Report of the Secretary-General to the Economic and Social Council on Extra-legal, Arbitrary and Summary Executions, which does not state that extralegal killings include those by non- State actors—only that they should be punished ‘wherever’ they take place.93 Actual international conceptualizations of extrajudicial, summary and arbitrary executions are discussed infra in Part II. An evaluation of the Supreme Court’s jurisprudence on the writ of amparo and a proposal to extend the Court’s evidentiary rulings with respect to the writ to civil actions for damages is provided infra in Part IV.

3. Extrajudicial Killings under Benigno Aquino III

Extrajudicial killings continue in the Philippines under the administration of Benigno Simeon Aquino III. Six cases of extrajudicial killings were reported in the first month of the new Aquino administration, and others continue to be reported.94 By August 2011, there had been twenty-seven (27) incidents of extrajudicial killings committed under the watch of President Aquino.95 This is despite Aquino’s campaign promises to protect human rights and to ensure justice for human rights victims.96 As a matter of fact, at the time of writing, no person has yet been convicted for an extrajudicial killing committed during the Aquino administration.97

II. THE DEVELOPMENT OF HUMAN RIGHTS PROHIBITION AGAINST EXTRAJUDICIAL KILLING

Because extrajudicial killings continue to go undefined in Philippine law and legislative measures specifically directed against extrajudicial killings have not been passed, this part of the article provides an overview of the historical development and elaboration of the human rights prohibition against extrajudicial killings. This account reveals the development of a consensus that extrajudicial killings by the State were of principal international interest and the development of the view that killings by the State were distinct from killings by non-State actors. The latter development will be further discussed in Part III.

A. Early Stages: Growing International Concern

In 1948, the United Nations’ Universal Declaration of Human Rights recognized, among others, the right of all persons to ‘life, liberty and security of person’98 and the right against ‘arbitrary arrest, detention or exile.’99 Similar guarantees were embedded in the European Convention on Human Rights (1953),100 the American Convention on Human Rights (1969),101 the International Covenant on Civil and Political Rights (‘ICCPR’) (1976),102 and the African Charter on Human and Peoples’ Rights (1981).103 Beginning in the 1980s, international concern grew over what had begun to be considered an epidemic of summary or arbitrary executions around the world.104 Some reported the deaths in countries like Guatemala, Uganda, Chile, and Argentina to be in the tens of thousands.105 The killings occurred in a variety of contexts and through a variety of practices: from the public execution of dissidents and the display of their bodies in Ethiopia, to on-the-spot executions by military officers in Chile, to claims by the Philippine Constabulary that dead civilians had been killed in combat.106 While the modern world had certainly seen its share of State killings, before and during the Second World War, the new spate of killings and enforced disappearances was different and unprecedented because of systematic use by States and their agents of murder and disappearances as a means of political survival.107 Although there were some successes by States in bringing responsible parties to justice,108 the General Assembly’s issuance of resolution after resolution decrying worldwide executions and calling on governments to end arbitrary or summary executions suggests that these victories were few.109

Growing international attention towards extrajudicial killings and enforced disappearances also unavoidably gave rise to questions concerning what such killings and disappearances actually were, and whether they had common or universal characteristics. Human rights advocates tended to answer in the affirmative, sometimes arguing that an examination of actual cases showed,if anything,a surprising degree of commonality.110 They tended to point to two defining characteristics: (1) the element of State involvement; and (2) the political motivation of the violations.111 Amnesty International defined State involvement and political motivation as the ‘essential difference’ between ordinary crimes like kidnappings or disappearances from acts like enforced disappearances.112 Characterizing the trend in the killing of individuals, Amnesty International employed the same two criteria, defining what it termed ‘political killings’ as ‘unlawful and deliberate killings of persons by reason of their real or imputed political beliefs or activities, religious, other conscientiously held beliefs, ethnic origin, sex, colour, or language, carried out by order of a government or with its complicity.’113

With regard to killings by the State, United Nations General Assembly resolutions introduced their own language into the mix. In its first resolution on the subject, the General Assembly expressed its concern at ‘summary executions as well as arbitrary executions’ and also at ‘the occurrence of executions which are widely regarded as being politically motivated.’114 That and other resolutions therefore seemed to target everything from capital punishment that took place without adequate procedural safeguards to politically motivated executions.115 To some extent, this expansion of terminology was a foreseeable consequence of the various ways in which States could be factually responsible for an illegal death: State agents might be responsible for killing or disappearing persons without acknowledging responsibility, persons might die in custody, or a State might accept responsibility for a death, such as by claiming that persons died after an armed clash or were properly executed for crimes.116 Human rights advocates came to deploy the new terminology as well, using descriptive add-ons like ‘arbitrary’ and ‘summary’ to illustrate distinctions between the amounts of legal process involved in a killing.117

Advocates were clear, though, that political killings or summary or arbitrary executions and enforced disappearances were essentially crimes committed by the State.118 To some, a definition of summary or arbitrary execution or of enforced disappearances limiting them to State acts was a pragmatic one: their observations had shown that States, not non-State actors, were those overwhelmingly responsible for the violations.119 Amnesty International argued that State-sponsored killings or disappearances were also fundamentally different from non-State sponsored killings, suggesting that illegal killings or disappearances by the State left victims and their families particularly vulnerable or helpless, given the State’s assumed role as the enforcer of the law, or the difficulties involved in obtaining redress when it is the State that is responsible for an illegal act.120

Human rights organization’s focus on State-sponsored acts was probably genuinely driven by the empirical reality of direct State responsibility for human rights violations, but it was also probably driven by a desire to direct the debate on extrajudicial killings and enforced disappearances towards the clear recognition of those acts as human rights violations requiring redress at the international level. For whether international law even made it illegal for a State to participate in the killing or disappearance of its citizens was not necessarily clear.121

To be sure, genocide was internationally wrongful,122 as was the killing of civilians in armed conflicts,123 but it was less certain that the summary shooting of a civilian or the failure to investigate a civilian’s death was internationally wrongful.124 A rift over the scope of the mandate of the proposed Working Group on Enforced and Involuntary Disappearances by the U.N. Commission on Human Rights in 1980 exposed a disagreement among States on the extent of their international responsibility.125 The United States and other countries sought to define the Working Group’s mandate to focus on individuals who had been made to disappear by the State, while a French proposal appeared to include individuals who had voluntarily hid themselves from the State or had left a State on their own volition.126 This division among members of the Commission on Human Rights on how to define enforced or involuntary disappearances reflected the unwillingness of some States to be subject to strong scrutiny. For instance, Argentina, then under military rule, sought to prevent the creation of a working group on disappearances, arguing that doing so would encroach upon State sovereignty.127 An eventual compromise provided no definition of an enforced or involuntary disappearance, but did succeed in allowing the working group to address individual cases of disappearances.128 This set the stage for the Working Group to come to terms with what the human rights violation of an enforced disappearance was through an assessment of individual cases.

B. The Special Rapporteur on Summary or Arbitrary Executions and the Working Group on Enforced or Involuntary Disappearances

A lack of guidance from the United Nations on what an extrajudicial killing is led to special rapporteurs playing a role in defining what they were. The Economic and Social Council (‘ECOSOC’), charged with making recommendations on promoting human rights and fundamental freedoms,129 authorized the appointment of the first special rapporteur on ‘arbitrary and summary executions’ in 1982.130 In his first report, Special Rapporteur S. Amos Wako observed that the ECOSOC resolution authorizing his appointment provided no definition of ‘summary’ or ‘arbitrary’ or ‘extralegal’ executions despite using all of those terms.131 Instead, Wako was left to adopt a set of tentative definitions based on his own interpretations of international human rights instruments, taking into consideration the actual diverse contexts in which deaths were taking place.132

Notably, Wako, despite his enumeration of various contexts in which summary or arbitrary executions could take place, adopted a tentative set of guidelines for defining extralegal, arbitrary and summary executions applicable across different contexts. A ‘summary execution’ was the deprivation of life resulting from a procedure lacking in due process and the protections provided by Article 14 of the ICCPR;133 an ‘arbitrary execution’ was one resulting from ‘the killing of persons carried out by order of government or with its complicity or tolerance or acquiescence without any judicial process’; and an ‘extralegal execution’ ‘refers to killings committed outside the judicial or legal process, and at the same, illegal under relevant national and international laws.’134 Common to all these definitions was the limitation of their application to deaths resulting from government action or inaction135—an outcome that Wako attributed both to the kinds of killings about which the United Nations had previously expressed its concerns and to the general responsibility of States under the human rights instruments to protect their citizens’ right to life.136

In concluding that United Nations bodies had expressed increasing concern about killings specifically by the State, Wako was clearly correct. Although the United Nations might have, at first, been primarily concerned with State killings in the context of capital punishment,137 killings committed by the State outside the bounds of legality had emerged as a concurrent and pressing concern.138 In 1980, the Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, by a vote of 74 States in favor and 7 abstaining, approved a resolution condemning ‘extra-legal executions.’139 The resolution specifically addressed itself to ‘murder committed or tolerated by Governments,’ and condemned the ‘practice of killing and executing political opponents or suspected offenders carried out by armed forces, law enforcement or other governmental agencies or by paramilitary or political groups acting with the tacit or other support of such forces or agencies.’140 The General Assembly later endorsed the resolution.141

The limitation of these definitions on the basis of pragmatism or on the basis of particular limitations imposed by United Nations bodies pointed to a lack of a strong international legal foundation to hold States accountable for systematic politically-motivated killings.142 International humanitarian law did provide for the protection of civilians from attacks during non-international and international armed conflicts. Common Article 3 of the Geneva Conventions provides that in armed conflicts, persons who take no active part in hostilities shall not be subject to violence to life and person including murder, execution without judgment by a regularly constituted court, and to outrages upon personal dignity.143 Additional Protocol II extended those protections to non-international armed conflicts.144 But these protections expressly do not apply to ‘situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature.’145 This left a clear gap in international legal protection for civilians from violence from their governments.146

1. A Developing Consensus

Within that gap, the Working Group on Enforced and Involuntary Disappearances and the Special Rapporteur on Summary and Arbitrary Executions played a significant practical and theoretical role. The Working Group interpreted its mandate broadly to include seeking information from States with regard to individual cases of disappearances.147 The Special Rapporteur received an express mandate to seek and receive information regarding individual cases of killings and exercised that authority, receiving information from various groups about individuals who had been killed and inquiring about incidents with the implicated States.148 According to one early commentator, this system created a kind of international habeas corpus—a mechanism for dealing with individual complaints of violations.149 Problems such as the inability of special rapporteurs or working groups to visit countries without its permission and the tendency of States to ignore them, however, meant that enforced disappearances and extrajudicial killings continued long after the 1980s.150 Nonetheless, the rapporteurs and Working Group still made a significant contribution to the development of a conception and taxonomy of extrajudicial killing.

The reports of Special Rapporteur Wako confirmed the political nature of most extrajudicial killings, validating the reports from groups like Amnesty International that stated that extrajudicial killings were political.151 Wako likewise concluded that the targets of summary or arbitrary executions were those ‘in opposition to the government or at least suspected or perceived to be so by the government.’152 This characteristic—the targeting of political opponents—pervaded all the various forms of summary or arbitrary execution that were taking place around the world.153 In consequence, summary and arbitrary executions were particularly prevalent in countries going through internal disturbances, political upheavals, the suppression of opposition groups and where the abuse of power by law enforcement was prevalent.154 Such killings also tended to be accompanied by a number of other defining characteristics. First, states where arbitrary or summary executions took place often provided impunity to military or police agents implicated in such killings.155 Second, the commission of summary and arbitrary killings had consequences beyond the deaths of particular individuals or groups, but also a negative impact upon a State’s institutions. The requirement of impunity for offenders undermined independent judiciaries,156 promoted the abuse of power by security forces,157 and ran concurrently with the increasing use of summary and arbitrary executions as a curb on ordinary crimes.158

The reports of the Working Group on Enforced or Involuntary Disappearances similarly determined that government actors were largely responsible for enforced and involuntary disappearances.159 They also determined that the scope of the rights affected by the disappearances of persons extended outwards to encompass the family members of the disappeared themselves. Not only were there frequently obstacles placed on the investigation and prosecution by victims’ families of disappearances,160 but the rights of family members to a family life and to their economic, social and cultural rights were affected. For example, the family’s standard of living, health care and education may all be adversely affected by the absence of a parent.161 In addition, in its first report, the Working Group suggested that one of the rights of family members that might be affected by enforced disappearances was also ‘a right of relatives to be informed of the whereabouts and fate of missing or disappeared family members.’162 Simultaneously, then, the Special Rapporteur and the Working Group confirmed the characterization of extrajudicial killings and enforced disappearances as largely State-sponsored crimes motivated by political ends and largely resulting in impunity for perpetrators. In addition, the Rapporteur and the Working Group had begun to identify the array of human rights, not directly pertaining to the victim, that were violated by the killings and disappearances. Although whether there were distinctions between terms like ‘extralegal’ or ‘extrajudicial’ killing continued to cause some confusion, the early 1980s was seeing the development of a consensus about what the character of these violations was.163

III. THE WIDENED SCOPE OF STATE OBLIGATIONS AND THE SPECIAL RESPONSIBILITY OF THE STATE

A. The Velásquez Rodríguez Case and the Expansion of State Responsibility

The Special Rapporteur’s acknowledgment that summary and arbitrary executions impacted the rights of others and of the community as well as the Working Group’s suggestion of the existence of a right to know or of a right to the truth were both relatively novel for their time. During this period, human rights instruments were generally not seen as conferring rights upon victims’ families that imposed other positive duties on the State besides that of prosecuting violators.164 Nonetheless, most international human rights instruments did have provisions requiring State parties to ‘take care’ to ensure guaranteed rights and to provide ‘effective remedies’ in cases where rights have been violated.165

As victims and their families began to appeal to human rights tribunals associated with the conventions, the tribunals began interpreting convention provisions to impose duties upon States to investigate and prosecute the underlying violations.166 Although there exist cases167 following the paradigm preceding the 1988 decision of the American Court of Human Rights in Velásquez Rodríguez, the Velásquez Rodríguez168 case is generally regarded as the landmark case that established that States do have an obligation to investigate and bring to justice those responsible for serious human rights violations.169

In Velásquez Rodríguez, the Inter-American Court of Human Rights, an international tribunal empowered to decide contentious cases on the interpretation of the American Convention on Human Rights,170 confronted a claim presented by the Inter-American Commission on Human Rights that Velásquez Rodríguez had been tortured, detained, and then disappeared at the hands of the Honduran military in violation of several articles of the American Convention on Human Rights, including the rights to life, humane treatment, and personal liberty.171 The Court found Honduras responsible for Velásquez Rodríguez’s disappearance and ordered Honduras to compensate his next of kin.172

In reaching this judgment, the Court made several important and innovative doctrinal conclusions. First, the Court rejected Honduras’ claim that the dispute was not admissible because the remedy of habeas corpus was still available.173

The Court noted that habeas corpus was not a remedy to find a disappeared person if it would require identifying that person’s place of detention and the authority that had ordered the detention, ‘since in such cases there is only hearsay evidence of the detention and the whereabouts of the victim is unknown.’174 Importantly, the Court interpreted the testimony that habeas corpus was not effective in practice during that relevant time as further evidence that the case should be deemed admissible.175Secondly, the Court decided that the claim against Honduras could succeed on the merits so long as the Commission could show ‘an official practice of disappearances . . . carried out by the Government or at least tolerated by it’ to which the disappearance of Velásquez Rodríguez could be linked.176 The Court thereby provided a relatively low evidentiary standard for holding States liable. Third, the Court used the American Convention on Human Rights’ provision—that State parties are to undertake to respect the rights recognized therein and assure the free and full exercise of those rights—to hold Honduras responsible for human rights violations even if those violations were ‘initially not directly imputable to a State.’ This is under the theory that responsibility arose from a ‘lack of due diligence to prevent the violation or to respond to it as required.’177 As a consequence, human rights violations required the State to respond with a ‘serious’ investigation of the violations to continue so long as there is ‘uncertainty about the fate of the person who has disappeared.’178 In establishing a lower evidentiary standard, imposing liability for failing to investigate a disappearance, and requiring remedies to be actually effective, the Court made the pursuit of human rights violations claims easier to pursue.179

Velásquez Rodríguez is also important because, in addition to being a practical response to the challenges involved in holding States accountable for human rights violations against their citizens, it was a judicial confirmation of the characterization of enforced disappearances made by United Nations bodies like the Working Group on Enforced or Involuntary Disappearances.180 The Court acknowledged the new political character of enforced disappearances that targeted not only the disappeared individual, but also the community at large. Disappearances, explained the Court, were now being used systematically ‘not only for causing certain individuals to disappear, either briefly or permanently, but also as a means of creating a general state of anguish, insecurity and fear.’181 This was certainly a characteristic shared by extrajudicial killings, which Amnesty International described as occurring often ‘as part of an overall policy of ruling by intimidating and breaking down independent social movements and political opposition by the most extreme means.’182

Subsequent decisions of the Inter-American Court likewise acknowledged that enforced disappearances and extrajudicial killings were crimes committed by the State with those characteristics.183 And both the 1992 United Nations General Assembly Declaration on the Protection of all Persons from Enforced Disappearance and the 1994 Inter-American Convention on Forced Disappearance of Persons restricted their definitions of enforced disappearance to refer only to acts committed by the State, reflecting the development of an international human rights prohibition targeted at State conduct.184 In the case of enforced disappearances, this would be further ratified through the definition of enforced disappearance in Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance, adopted by the General Assembly in 2006, which was substantially the same as that in the Inter-American Convention and in the 1992 General Assembly Declaration, i.e., a restricted definition of enforced disappearances to acts by States.185

B. Is There a Uniform International Definition of Extrajudicial Killings?

Unlike in the case of enforced disappearances, there is no uniform definition of ‘extrajudicial executions’ as acts by States in international law. It may therefore be argued that extrajudicial killings may properly comprise killings by non-State actors within the same general human rights prohibition, or that the United Nations has left space for an evolution of the prohibition to include such killings.186 Certainly, Velásquez Rodríguez showed that States could be responsible for the acts of even non-State actors for failing to prevent, stop, and investigate killings by them.187 And of course, international concern has also been shown for killings by non-State actors. Killings by non-State actors such as rebel groups have also been recorded by the United Nations’ rapporteurs.188 But this should not lead to the conclusion that killings by non- State actors must be treated as equivalent to those of State actors in terms of what these acts are and their particular effects. Rather, international human rights law has now come to recognize that killings by the State are distinct from those by non-State actors in their character and in their impact upon victims and victims’ human rights.

1. The Distinct Character of Killings by the State

The reports of the Working Groups and the rapporteurs as well as jurisprudential developments indicate that killings by the government are distinct from others. As described supra in Part I, human rights advocates in the 1980s attempted to focus attention on State-sponsored extrajudicial executions by arguing either that the vast majority of executions were committed by the State, or by arguing that killings by the State were just fundamentally different from acts committed by non-State actors. In 1983, Jose Zalaquett, Amnesty International’s Deputy Secretary General testified before the United States Congress that, ‘[w]hen life is taken by the very state apparatus charged with protecting it, there is a situation of particular defenselessness of the individual before the state.’189 Additionally, he argued, State killings ‘victimize . . . families and the entire community,’ ‘poison social and political processes,’ and ‘send to the whole society the pernicious message that arbitrary killing of individuals is a possible course of action in certain situations.’190

Much of these arguments were substantiated. In States where extrajudicial killings were prevalent, independent judiciaries were corrupted191 and security forces abused their power.192 Governments largely failed to investigate abuses by their own agents,193 and victims and their families either refused to speak out or saw their advocates threatened or themselves turned into victims.194 The substantiation of the distinct nature of killings by the government appears to have more than justified the practice of their distinct treatment under international law. Examples of this distinct treatment include Resolution 5 of the Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders,195 General Comment 6 of the Human Rights Committee on the right to life under the ICCPR, which states that, ‘[t]he deprivation of life by the authorities of the State is a matter of the utmost gravity,’196 and even the most recent report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, which states that, ‘[t]he primary purpose of the recognition of the right to life is to protect people from being killed by the State, the entity that claims and, to a large extent, exercises monopoly on the use of force.’197

2. The Special Impact upon Victims of State Killings

Yet more than the recognition and confirmation of the special character of killings by the State, the evolution of international law, through cases like Velásquez Rodríguez, came to recognize a more complete spectrum of victims’ human rights affected by extrajudicial killings as well as the concomitant and special responsibility of States to assure those rights. These developments strengthen the conclusion that extrajudicial killings by States must be treated as distinct from killings by non-State actors.

Velásquez Rodríguez helped inaugurate a new era in the expansion of the concept of ‘victims’ rights’ in the international sphere.198 Before Velásquez Rodríguez, the Special Rapporteur on Summary and Arbitrary Executions and the Working Group on Enforced and Involuntary Disappearances had begun to lay a theoretical groundwork for examining the spectrum of human rights affected by extrajudicial killings and enforced disappearances beyond the right to life of the direct victim of the killing or disappearance. That right had, understandably, been considered the primary right considered affected by such violations,199 albeit closely connected with other rights such as those against arbitrary arrest, detention and torture.200 The Working Group on Enforced Disappearances began the process of examining whether other human rights might be affected by covered violations by suggesting that enforced disappearances might also impact such rights as that to a family life as well as a ‘right of relatives to be informed of the whereabouts and fate of missing or disappeared family members.’201 The Velásquez Rodríguez ruling then later recognized the affirmative duty of a State to seriously investigate a human rights obligation.202

Although Velásquez Rodríguez finding that there was a duty to investigate was innovative in 1988,203 it has since become well established that States have an affirmative obligation to prevent and investigate human rights violations.204 That duty to investigate was counterpart to a larger number of now-established rights attributed to the victims of violations, including the right to access to justice, to compensation and reparations, and to the truth about the fate of their loved ones.205 The Inter-American Court of Human Rights has also recognized a right against the violation of relatives’ physical and mental integrity resulting from the loss of their family members and the State’s failure to investigate their deaths.206 In Blake v. Guatemala, the Inter-American Court observed that the family members of the deceased had suffered considerably in light of the State’s failure to assist them in their search for the truth.207 The ruling is consistent with the understanding that the victims of State violations of human rights comprise more than the specific individual or individuals who have disappeared or have been killed.208 It is also consistent with the jurisprudence of the European Court of Human Rights.209

The concept of victims’ rights and the expansion of State responsibility to investigate as comprising the responsibility to investigate violations whether or not the violation was immediately imputable to the State itself,210 have reconfigured and expanded States’ obligations to their citizens. States are responsible for ensuring that extrajudicial killings and enforced disappearances are investigated and perpetrators prosecuted, and States are particularly responsible for the unique effects of State-sponsored human rights violations upon the persons that are harmed by them. Acts of violence committed by the State as well as the impunity afforded to their perpetrators are different from other crimes: not only may victims’ loved ones suffer harassment from the State, but they also experience powerlessness and a profound sense of injustice that compounds and prolongs their grief.211 In light of the need to address the specific effects of State-sponsored violence, it only makes sense to treat killings by the State distinctly from non-State killings.

As importantly, acknowledging how victims of extrajudicial killings are particularly affected when those killings are perpetrated by the State mandates that appropriate remedies be available. If complying with human rights obligations with regard to victims of political killings requires remedies and compensation commensurate with the suffering entailed by State killings, then extrajudicial killings by the State must be treated distinctly from killings by non-State actors.

IV. ADVANTAGES OF TREATING STATE EXTRAJUDICIAL KILLINGS DIFFERENTLY

Historical and conceptual points aside, a fundamental question regarding whether they should or should not be defined by the Philippine government as acts by State actors only is whether doing so would actually serve the purpose of protecting and vindicating the human rights of Filipinos more than doing otherwise. If not, attempting to define extrajudicial killings as acts by State actors alone would have little practical use. Under such a scenario, the Supreme Court’s approach, as reflected in the writs of amparo and habeas data, of covering acts by either kind of actor would indeed be more protective than an approach focusing on acts by one or the other. This final part of this article argues that defining extrajudicial killings, for government purposes, as acts by the State would serve important practical purposes and could be a means of proving speedier and more efficacious remedies to victims of extrajudicial killings and their families. This part begins by explaining that defining extrajudicial killings as State acts would not immunize criminal acts for which armed rebel groups are primarily responsible under international legal norms. Illegal killings by groups like New People’s Army could still be in violation of international humanitarian law, otherwise known as the law of armed conflict, and international criminal law. In fact, the new Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity provides a remedy against illegal killings by such organized political groups. This part next explains that defining extrajudicial killings as State acts would not eliminate the Philippine government’s responsibility, under international human rights law, to investigate illegal killings committed by non- State groups.

Next, this part will outline the current barriers that impede the criminal prosecution of extrajudicial killings cases, such as the lack of government prosecution, lack of government cooperation, fear on the part of witnesses, and the need to demonstrate guilt by proof beyond reasonable doubt. This section will explain that a distinction between State and non-State killings may allow for the development of alternative mechanisms tailored to State violence that can provide speedier redress for victims. Using the approach of the Inter-American Court of Human Rights, as already reflected and applied by the Supreme Court in its jurisprudence on the writ of amparo, as a guide, this section proposes the creation of a civil remedy that could be a way to vindicate victims’ rights under a lower evidentiary standard than is required in criminal proceedings. Such a remedy could complement criminal prosecutions or provide an alternative means of redress when criminal liability cannot be secured.

A. International Humanitarian or Criminal Law Still Applies to Violence by Non-State Actors

A strong argument against the creation of remedies specifically applicable to extrajudicial killings by the State is that non-State actors such as the New People’s Army, Moro Islamic Liberation Front or Abu Sayyaf have also and may continue to engage in illegal killings. This is undeniable.212 The NPA has continued to execute civilians it considers allied with the government or who refuse to participate in its ‘people’s courts.’213 However, it is important to remember that murder or disappearances by organized rebel groups are not actually immune from liability under international humanitarian law and international criminal law.

Additional Protocol II to the Geneva Conventions, which applies to conflicts between a State and ‘dissident armed forces or other organized armed groups,’214 prohibits violence to the lives and health of or outrages upon persons not taking part in hostilities.215 The Protocol also protects civilian populations from being the objects of attack and from violence or threats ‘the primary purpose of which is to spread terror among the civilian population.’216 In addition, Common Article 3 of the Geneva Conventions, applicable to armed conflicts not of an international character, prohibits ‘violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture’ and ‘outrages upon personal dignity.’217 Even outside the context of an armed conflict, liability attaches to non-State actors that engage in widespread or systematic murder.218

Significantly, Philippine law already provides criminal remedies for violations of international humanitarian and criminal law. The Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity (‘International Humanitarian Law Act’), passed in 2009, expressly adopts the Geneva Conventions ‘as part of the law of our nation,’219 and provides criminal penalties for violations of Common Article 3 of the Geneva Convention and crimes against humanity.220 This includes violence to life and person such as willful killings and torture, outrages upon personal dignity, and the ‘passing of sentences and the carrying out of executions without previous judgment’ of a regularly constituted court with due process.221 Liability extends to superiors and accomplices.222 Although the Act, as in the Geneva Conventions themselves, are not applicable to ‘internal disturbances or tensions such as riots,’ the Act is most likely applicable to illegal killings committed by the NPA as ‘an organized armed group’223—a category that the NPA with its thousands of fighters, sophisticated organization, geographically widespread activity, and continuing armed violence would easily fit in.224 With respect to the NPA, the revival of CARHIHRL may also provide a hypothetical remedy.225

B. State Responsibility Would Also Be Engaged by Killings by Non- State Actors

The distinct treatment of extrajudicial killings by the State would not lead to an absence of State responsibility to investigate killings even if they cannot be linked to the State. A State’s obligation to investigate extrajudicial killings is already well established.226 In recent years, the U.N. Human Rights Committee has more than once found the Philippines to have failed to comply-with that duty.227 In addition, States are liable for their failure to exercise due diligence to prevent or mitigate illegal killings by non-State actors.228

C. Treating Killings by the State Distinctly May Permit Distinct and More Effective Remedies

1. Challenges to the Investigation and Prosecution of Extrajudicial Killings

One of the unique characteristics of extrajudicial killings by the State is the difficulty involved in seeking to hold one’s own State accountable for a violation of human rights. Not only will governments likely be uncooperative in such matters like fact-finding,229 but victims, their relatives, and their advocates might find themselves in danger should they seek to challenge their States’ security apparatus. This has generally proven true in the Philippines as well. Despite the large number of reported extrajudicial killings and enforced disappearances in the Philippines during the Arroyo administration, there have been few convictions. Of 245 reported extrajudicial killings from 2000 to 2008, only 2 led to convictions.230 Only about 32% of reported incidents reached the trial stage.231 When there are convictions, the time it takes to reach conviction is long—averaging more than 5 years.232

A number of problems plague the prosecution of extrajudicial killings. Possible collaboration between law enforcement and the perpetrators of killings leads to failures to engage in the basic elements of an investigation such as the examination of victim’s bodies, questioning of witnesses and collecting material evidence.233 Fear of collaboration between the police and perpetrators in turn leads to fear on the part of witnesses or family members to cooperate with investigations.234 Ironically, police may be too afraid to investigate the military anyway.235 This is compounded by the weakness of the country’s witness protection program, which is either dilatory in providing protection or fails to provide protection at all.236 The unavailability of witnesses or their refusal to testify is a significant obstacle in prosecutions.237 Other significant problems include the refusal of the police to investigate killings when military involvement in the act is suspected, and the military’s own refusal to investigate its own for human rights violations.238 Technical weaknesses include limited forensic capacity, responsible for causing an overreliance on witness’ testimony in the first place,239 and the tendency on the part of courts and prosecutors to fail to identify extrajudicial or political killings at an early stage, thereby leading to a case of extrajudicial killing being treated as an ordinary murder.240

The Supreme Court has attempted to help address extrajudicial killings through the designation of special rules for the trial of extrajudicial killing cases and the promulgation of the writs of amparo and habeas data. The Supreme Court designated 99 courts to try cases of ‘political killings’ in continuous trials to be terminated in 60 days from the start of the trial and then to issue decisions within 30 days of the submission of the decision.241 The Court’s order also required the special courts to report monthly on the status of cases of political killings.242 The order’s requirements, however, have not been followed.243 Even the writ of amparo has proven to be an ineffective means of securing the release of individuals, given the judicial system’s delays with regard to their issuance and the apparent inability to enforce the writs.244

2. Responses to Challenges to the Investigation and Prosecution of Killings

Treating States differently from non-State actors permits deterrent and remedial remedies that are tailored to State violations of human rights violations. This could occur in two ways: first, prosecutors and courts might use the element of imputed or alleged State responsibility in order to classify extrajudicial killings as a special type of case that requires special or expedited consideration during the investigatory and judicial phases of a case; and second, new measures could be designed that would better address human rights violations by the State by recognizing that suits against the State involve unique challenges to be overcome. In particular, remedial mechanisms, as Velásquez Rodríguez illustrated, could take into consideration whether there has been a pattern or practice of similar State conduct, whether information regarding human rights violations could reasonably be expected to be difficult to obtain given that the State would likely refuse to disclose relevant information, and the State’s willingness to cooperate with a court or other body. In Velásquez Rodríguez, this approach permitted a form of civil compensation to be awarded to victims even under a lower evidentiary standard. Such an approach might not be feasible in order to facilitate criminal responsibility given due process requirements,245 but may still be a means of providing better and safer redress for the victims of human rights violations.

i. Classifying extrajudicial killings as State acts for the purposes of prosecution

Efforts to address extrajudicial killings and enforced disappearances have often concentrated on promoting and facilitating the criminal prosecution of perpetrators.246 And much foreign aid has been directed towards that goal.247 But extrajudicial killings are often punished under the same criminal provisions in the Revised Criminal Code as homicides that lack political purposes, are not committed by the State or its agents, not committed during the course of military operations, or arise from deaths in custody and the like.248 Deaths arising from extrajudicial killings may also fall under existing special laws if they involve torture249 or fall under the International Humanitarian Law Act. A determination is required then as to whether a specific case should be considered a probable extrajudicial killing or a crime that falls under special laws like the International Humanitarian Law Act or the Anti-Torture Act.

In order to address that question, some means must be available to decide what cases merit special consideration. Under a victims-rights based approach, it is necessary that killings by the State be treated distinctly from those not by the State. Extrajudicial killings could therefore comprise the killings of journalists by State officials or authorities and deaths in detention. This approach is supported by the United Nation’s model protocol for the investigation of extrajudicial killings as to cases where success through the use ordinary criminal processes seems less likely.

(a) A practical and victims’ rights based approach to defining the scope of extrajudicial killings

In addition to the paradigmatic case of extrajudicial killings through assassination by members of the military, the Philippines has also experienced other kinds of summary, extralegal and arbitrary executions. The Maguindanao massacre in 2010, which claimed many journalists among its victims, identified the Philippines as one of the most dangerous countries in the world for journalists.250 In 2011, a gruesome video was leaked from a Manila police station showing police officers torturing a detainee, raising questions as to whether deaths arising from an excessive use of police force can also be considered an extrajudicial killing.251

Defining what is or what is not an extrajudicial killing under a victims’ rights-based approach would consider whether victims’ rights are affected by an illegal killing in the same way as the paradigmatic case of killings by members of the military firing guns from their motorcycles. Under this approach, other killings such as the killings of journalists by State authorities should probably also be considered extrajudicial killings. This is because as such acts would similarly be violations of victims’ rights to the truth and to their physical and mental integrity. Indicia that a victim has been killed as a result of government violence should therefore provide a theoretically sound basis for treating a case of homicide as an extrajudicial killing as far as investigation and other such processes are concerned.

Alternative approaches would be to consider the motives behind the killing or the identity or profession of the victim. While these are certainly pertinent criteria, and criteria that should be relied upon to identify extrajudicial killings,252 the use of the victim’s profession or the motive behind the attack as primary criteria would be practically over-inclusive. The reason that special procedures are necessary with respect to extrajudicial killings is that perpetrators have enjoyed impunity. And impunity is traceable to government involvement in that particular crime. This is recognized by the Minnesota Protocol as incorporated in the U.N. Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions.253 The Minnesota Protocol, the alternative name for the Manual’s Model Protocol for a Legal Investigation of Legal, Arbitrary and Summary Executions applies in instances where ‘criminal proceedings are less likely to be brought to a successful outcome’ because of factors like the investigating agency’s possible lack of impartiality. A special investigation should be commenced where there are ‘[f]actors that support a belief that the Government was involved in the execution.’254 To put it bluntly, it is because the government appears to have been involved that special procedures and distinct treatment are necessary.

Consequently, the Minnesota Protocol suggests the existence of one or more of the following factors as requiring special procedures:

(i) where the victim was last seen alive in police custody or detention;
(ii) where the modus operandi is recognizably attributable to government-sponsored death squads;
(iii) where persons in the Government or associated with the Government have attempted to obstruct or delay the investigation of the execution;
(iv) where the physical or testimonial evidence essential to the investigation becomes unavailable.255

This recognition of a practical basis for distinguishing extrajudicial killings on a pragmatic basis and in combination with a victims’ rights based approach allows for a principled and practical way to address extrajudicial killings. Of course, further elaboration would be required, in the Philippine context, to identify and monitor applicable modus operandi. Work is also needed to provide guidelines to prosecutors and to the courts on when an identified extrajudicial killing should be criminally prosecuted under a special statute, such as the Anti-Torture Act or the International Humanitarian Law Act, as opposed to an expedited process for extrajudicial killing.

Confining extrajudicial killings to acts attributable to the State has another benefit: by treating acts attributable to the State distinctly from those that are not, unique remedies may be created that are specially tailored to the unique harm of State violence. This final section of this research paper illustrates one way in which distinguishing State from non-State violence permits the creation of a tailored remedy. Using Velásquez Rodríguez as a model, this section proposes a new civil remedy for victims of extrajudicial killing and enforced disappearances that employs a lower burden of proof for claimants, thereby providing an easier avenue for vindication and civil compensation. This hypothetical remedy could be a complement to criminal prosecution where the evidence is insufficient to demonstrate guilt beyond a reasonable doubt. This remedy could allow speedier compensation and vindication for claimants while acting as an incentive for government to better respond to extrajudicial killings committed by it or its agents because of the threat of actually paying for violations. Moreover, this remedy would already have jurisprudential support in the Supreme Court’s decisions on the writ of amparo, which have already incorporated Velásquez Rodríguez into its analysis of evidentiary burdens in human rights cases.

Although the criminal prosecution of human rights violators has often been the focal point of victims’ rights advocates’ efforts,256 civil remedies also have a place in schemes to redress human rights violations.257 Civil liability, like criminal liability, deters abuses, rehabilitates and helps restore the dignity of victims, reinforces social norms against human rights violations, and empowers victims.258 Among the most significant successes for Philippine victims of human rights, the suit against the estate of Ferdinand Marcos, was obtained through civil rather than criminal processes.259 More importantly, plaintiffs in civil suits deal with a lower burden of proof than is necessary to win a criminal case.260 And, in civil suits, legislatures and courts may apply alternative schemes with respect to plaintiffs’ and respondents’ burdens of proof.261 Consequently, civil suits could potentially be an effective means of obtaining redress for human rights victims.

(a) Weaknesses of existing civil remedies

Philippine law does already provide for civil remedies under various articles of the Civil Code.262 These include: Article 32, which creates a cause of action for violations or impairments of constitutional rights or liberties; Articles 19, 20, and 21, which concern good faith and intentional or negligent injury or loss; Article 27, which provides a cause of action for material loss arising from a public servant or employees refusal to or neglect in performing official duties; Article 33, which permits suits arising from physical injuries separate and distinct from related criminal actions; and Article 2176, which obliges the payment of damages to another for quasi-delicts.

The pursuit of these existing civil remedies, though, is problematic for a few principal reasons. First, under existing Rules of Court, plaintiffs must pay what can become prohibitive filing and other litigation fees.263 This initial barrier acts as a disincentive for plaintiffs to file suits for substantial damages. Second, even under the lower preponderance of the evidence standard for a civil action, plaintiffs may be unable to prevail. This arises as a result of the unique challenges involved in suing the government—lack of government cooperation, inability to adequately identify specific individual perpetrators of violations, lack of witnesses, and weak forensic evidence.264

(b) The Supreme Court’s response to evidentiary problems in its writ of amparo jurisprudence

The Supreme Court, in its landmark decision, Razon v. Tagitis, has already recognized and responded to many of the difficulties involved in prevailing in an action against the government.265Razon, a writ of amparo case involving an enforced disappearance, listed the evidentiary difficulties involved in meeting the burden of proof for the writ, difficulties that the Court explained exist, ‘because the State itself—the party whose involvement is alleged—investigates enforced disappearances.’266 Difficulties included deliberate concealment of perpetrators’ identities, scared or intimidated witnesses, and the ‘State’s virtual monopoly of access to pertinent evidence.’267 Because of these problems, the Court declared that it was compelled ‘to adopt standards appropriate and responsive to the circumstances, without transgressing due process requirements.’268

In an innovative application of Velásquez Rodríguez outside the context of a proceeding before an international human rights tribunal, the Court relied on Velásquez Rodríguez to modify the standard of proof generally applicable in civil cases involving human rights: all evidence was to be considered ‘in their totality,’employing’ the most basic test of reason.’269 In its decision rejecting the government’s motion for reconsideration, the Court further clarified that it was adopting a ‘lowered or relaxed’ burden of proof.270 This, the Court explained, was because, the requirement of direct evidence ‘would render it extremely difficult, if not impossible, to prove that an individual has been made to disappear.’271

The extent to which the Court’s jurisprudence on the writ of amparo could serve to facilitate civil remedies for violations of human rights is unclear. The Court has emphasized that the writ of amparo is a remedial or procedural measure unlike civil or even administrative processes.272 In doing so, the Court has left open the possibility that shifts in the burden of proof in particular civil cases could deny due process. In addition, the Court, even under what it terms a flexible or lowered standard, has rejected petitions for the writ of amparo that appeared meritorious. In In re: Melissa C. Roxas, the petitioner alluded to circumstances of her disappearance that included her forcible abduction in broad daylight with the use of vehicles without license plates, ‘interrogations to elicit communist inclinations,’ her perception of ‘sounds of construction, gun-fire and airplanes’ at her place of detention, and the consistency of these indicia with prior enforced disappearances in support of her writ.273 Yet the Court demanded direct evidence of government involvement in order to issue what was, in essence, a protective order against the government from an individual who had been so abducted.274 It disregarded Roxas’ point that her abduction was consistent with other cases of abductions by government agents.275

Indeed, the standard employed in Roxas is higher than the standard required in Velásquez Rodríguez, despite the Razon v. Tagitis Court’s reliance on that case. To recall, in Velásquez Rodríguez, the Inter-American Court determined that Honduras was responsible for the disappearance of a person based on an examination of a pattern of government conduct and the consistency of the facts of the case at bar with that pattern.276 On that basis, the Inter-American Court even awarded compensation to the victim’s family.277 Some of the difference between the Inter-American Court and the Philippine Supreme Court’s decision may be attributable to a distinction between the processes and procedures of an international human rights tribunal as compared to a domestic tribunal applying domestic law.278 Still, consistency with international standards for the protection of human rights, practicality, and consistency with the Supreme Court’s decision in Razon, would seem to require that the Court apply Velásquez Rodríguez more whole-heartedly by placing greater weight on circumstantial evidence of government involvement in human rights violations.279 This would improve the effectiveness of that remedy and act as a template for full compensatory civil remedies for the underlying violations.

Because the writ of amparo is not a compensatory scheme, legislation or perhaps an administrative order from the Supreme Court further codifying Velásquez Rodríguez and employing an adjusted, flexible burden of proof could be an effective means of compensating and vindicating victims and at the same time disincentivizing government violations of human rights. This proposed remedy would both respect the rights of victims and the unique challenges of suing the government with its monopoly on evidence. Such a remedy could involve all or some of the following components.

(i) Waiver of Filing Fees

First, the remedy should permit waiver of filing fees. Such waivers are already provided for in other legislation like the Anti-Trafficking in Persons Act of 2003.280 This would make the courts accessible for plaintiffs seeking judicial redress and be in line with the State’s commitment to human rights.

(ii) Allow the Civil Action to Proceed Independently

Second, the civil action should be allowed to proceed independently of any criminal action. This is already the case with respect to suits brought under Articles 32, 33, 34 and 2176 of the Civil Code.281 Otherwise, the pursuit of this remedy would have to be suspended or not instituted until the criminal case is resolved, making the availability of the remedy dependent on the resolution or termination of what could be a lengthy criminal case.282 Alternatively, the remedy could be subsumed under a strengthened Article 32 of the Civil Code, which already concerns violations of constitutional rights by public officers.

(iii) Apply Velásquez Rodríguez

Third, the measure must be cognizant of the special difficulties involved in human rights suits against the State. The burden of proof must be adjusted. In Velásquez Rodríguez, this meant that there could be a judgment against the State where a plaintiff can show that there is an official practice of killings or disappearances, and the disappearance or killing at issue can be linked to that practice by its consistency with prior modus operandi and by the State’s unjustified refusal to investigate or prosecute that act seriously.283 Similarly, plaintiffs should be able to establish a claim for compensation from the government should they be able to show that a person has been killed or disappeared, that crime can be linked to some official activity or practice, and the State has not seriously investigated or prosecuted that act. This would allow plaintiffs to avoid having to establish that a specific individual was responsible for the particular act of pulling a trigger or having to conclusively identify, under a standard that is unreasonable under the circumstances, that the particular crime was indeed committed by State agents or authorities. Plaintiffs could instead point to patterns or practices of behavior to which their case bears a similarity in terms of the manner of execution of the violation, the political affiliation of the direct victim, and the motives for the act. That the Supreme Court already applies an altered standard of proof in its writ of amparo jurisprudence would bolster the use of a similarly flexible standard of proof under the proposed remedy.

(iv) Use Burden Shifting

Fourth, the burden of proof can be adjusted by using a burden shifting scheme similar to that employed in American employment discrimination law. In McDonnell Douglas v. Green, the United States Supreme Court applied burden shifting to race discrimination cases as follows: (1) a complainant carries an initial burden of establishing a prima facie case of discrimination; (2) if the complainant establishes a prima facie case, the respondent must articulate a legitimate, non-discriminatory reason for the act complained of; and (3) the complainant must have the opportunity to show that the given reason is pretextual.284 A similar approach, if applied to human rights violations, could permit a plaintiff to prevail so long as he or she makes a prima facie case that the government fails to rebut. An illustration of a similar scheme could be as follows: (1) the plaintiff has an initial burden of establishing a prima facie case that the direct victim has been subject to an extrajudicial killing or enforced disappearance; (2) if the plaintiff meets that initial burden, the government must then rebut the prima facie case by showing that it has seriously and thoroughly investigated the accusation and is engaged in the proper prosecution of the case; and (3) the plaintiff should have a final opportunity to show that the investigation or prosecution was not serious or deeply flawed or that the government’s defense is pretextual.

This kind of burden shifting would allow a sanction to be placed upon the government and compensation paid to victims if the government fails to comply with its duty to investigate and prosecute. It therefore penalizes the obstruction of a resolution of a human rights case rather than rewarding it with the case’s dismissal or never-ending delay. As such, it would allow redress for victims precisely in the kinds of cases for which there has been impunity. In short, by tailoring a remedy to State acts, State violations could be remedied more effectively. This shows that confining extrajudicial killings to State acts can benefit responses to human rights violations.

CONCLUSION

A disappointing truth about extrajudicial killings in the Philippines is that they have gone on for too long and in too familiar a pattern. As Filipinos grapple with strategies and solutions towards the goal of ending extrajudicial executions, uniformity in defining what the problem becomes more pressing. A definition of extrajudicial killings as acts committed by the State would be consistent with the unique character of State killings and with the range of victims’ rights affected when it is the State that kills. A unique crime may require a unique remedy, which may, in turn, lead to more effective legal solutions.

** J.D., Georgetown University Law Center; M.A., University of York; B.A., University of British Columbia; Georgetown Fellow, Asylum Access – Refugee Solutions Tanzania. At the time of writing, the author was an intern with the Human Rights Unit of The Asia Foundation in the Philippines. The author would like to acknowledge Atty. Carolyn Mercado, Senior Program Officer of the Human Rights Unit, Atty. Alpha Carole Pontanal of the Mindanao Human Rights Action Center, and Atty. Al Parreño for their comments to drafts of this article. Finally, the author would like to thank Atty. Pocholo Labog, EmilTapnio, Aaron Arenillo, and Nadine Ragonjan of The Asia Foundation for their gracious hospitality while this article was being written.

1 See Edy Kaufman & Patricia Weiss Fagen, Extrajudicial Executions: An Insight into the Global Dimensions of a Human Rights Violation, 3 HUM. RTS. Q. 81, 83 (1981) (listing the Philippines as one of the countries in which people have systematically been made to disappear by state actors only to be found dead later).

3 HUMAN RIGHTS WATCH, SCARED SILENT: IMPUNITY FOR EXTRAJUDICIAL KILLINGS IN THE PHILIPPINES 25 (2007), available at http://www.hrw.org/en/reports/2007 /06/27/scared-silent-0 (observing that different NGOs have reported different numbers of victims).

5 In 2007, estimates ranged from 136, as reported by the Philippine National Police, to 724, as reported by the leftist NGO Karapatan or the Alliance for the Advancement of People’s Rights. REPORT OF THE INDEPENDENT COMMISSION TO ADDRESS MEDIA AND ACTIVIST KILLINGS 1 (2007), available at http://www.pinoyhr.net/reports/meloreport.pdf [hereinafter 'MELO REPORT'].

10 AMNESTY INTERNATIONAL, PHILIPPINES: PROGRESS, STAGNATION, REPRESSION? THE STATE OF HUMAN RIGHTS IN THE PHILIPPINES UNDER AQUINO (2011) (‘During President Aquino’s first year [in office], dozens of cases of extrajudicial executions have been reported in the Philippines.’); HUMAN RIGHTS WATCH, ‘NO JUSTICE JUST ADDS TO THE PAIN’: KILLINGS, DISAPPEARANCES, AND IMPUNITY IN THE PHILIPPINES 20-34 (2011) (detailing cases of extrajudicial killing occurring since the start of Aquino administration).

13 MELO REPORT, at 53-54; Alston Report, at ¶¶ 28-29 (military in a ‘state of denial
concerning the numerous extrajudicial executions in which its soldiers are implicated.’).

14 See AL. A. PARREÑO, KILLINGS AND DISAPPEARANCES IN A ‘JUST AND HUMANE SOCIETY’ PHILIPPINES (2001 – AUGUST 2011) 70 (2011) (as of August 2011, only 5 out of 364 incidents of extrajudicial killings have terminated in convictions). See also PARREÑO, supra note 4, at 27.

15 See, e.g., THE ASIA FOUNDATION, STRENGTHENING HUMAN RIGHTS IN THE PHILIPPINES PROGRAM, QUARTERLY REPORT FROM THE ASIA FOUNDATION TO THE UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT, 1 JANUARY TO 31 MARCH 2009 5-9, available at http://pdf.usaid.gov/pdf_docs/PDACO330.pdf (describing programs funded to address extrajudicial killings).

16 While many civil society groups and journalists have used the term ‘extrajudicial killings,’ (see, e.g., TARGET EJK AND ENFORCED DISAPPEARANCES IN THE PHILIPPINES: A CONSENSUS-BUILDING, MEDIA REPORTING & RISK REDUCTION PROJECT, http://www.targetejk.net/index.php?option=com_content&view=article&id=50:working- together-to-define-and-address-extrajudicial-killings&catid=9:blogs&Itemid=16 [project by Institute for War and Peace Reporting to address extrajudicial killings and enforced disappearances]; Dennis Carcamo, Rights groups: end extra-judicial killings, forced disappearances, PHILSTAR.COM, June 17, 2010, http://www.philstar.com/Article.aspx?articleId= 585135&publicationSubCategoryId=200; Nonoy Espina, Arroyo fails to take steps to end extrajudicial killings, INQUIRER.NET, July 25, 2006, http://services.inquirer.net/print/ print.php?article_id=11686) the Supreme Court and the Executive have preferred to use the term ‘extralegal killing.’ See PHIL. SUP. CT., ANNOTATION TO THE WRIT OF AMPARO 1- 3, available at http://sc.judiciary.gov.ph/Annotation_amparo.pdf (using the term ‘extralegal killing’ to refer to ‘killings committed without due process of law, i.e. without legal safeguards or judicial proceedings.’); Dep’t of Justice, Dep’t Ord. No. 848, Special Task Force to Address Extralegal Killings and Enforced Disappearances (2010).

19 E.g., PROTOCOL OF ANDUROG KAN DERECHOS: A MULTI-SECTORAL QUICK REACTION TEAM FOR EXTRA LEGAL KILLINGS (ELK) AND ENFORCED DISAPPEARANCES (ED) IN THE PROVINCE OF ALBAY (2010) (providing for private and public cooperation to respond to killings by both state and non-state actors).

20 See CRISELDA YABES, THE BOYS FROM THE BARRACKS: THE PHILIPPINE MILITARY AFTER EDSA 64 (2009) (describing President Corazon Aquino’s decision that the Commission on Human Rights should investigate both military and NPA abuses as contributing to the Commission’s ineffectiveness).

22 Human Rights in the Philippines Hearing Before the H. Subcomm. on Human Rts. and Int’l Orgs. of the Comm. on Foreign Affs., 98th Cong., at 55 (1983) [hereinafter 'Human Rights in the Philippines Hearing'] (Statement of Robert Youngblood, Assoc. Prof. of Political Sci. and Affiliate with the Cent. of Asian Studs., Arizona State Univ.). See also ALFRED W. MCCOY, POLICING AMERICA’S EMPIRE: THE UNITED STATES, THE PHILIPPINES, AND THE RISE OF THE SURVEILLANCE STATE 397-98 (2009) (recounting Marcos’ turn from ‘constitutional authoritarianism’ to extrajudicial executions in years after Martial Law). Serious human rights violations actually increased after martial law was lifted. See AMNESTY INT’L, PHILIPPINES: UNLAWFUL KILLINGS BY MILITARY AND PARAMILITARY FORCES 7 (1988).

23 Human Rights in the Philippines Hearing, supra note 22, at 55 (Statement of Robert Youngblood, Assoc. Prof. of Political Sci. and Affiliate with the Cent. of Asian Studs., Arizona State Univ.).

24 See The Philippines: Marcos’ Martial Law, TIME, Oct. 2, 1972, available at http://www.time.com/time/magazine/article/0,9171,906446-1,00.html;

25 Human Rights in the Philippines Hearing, supra note 22, at 4 (Statement of Hon. Elliot Abrams, Ass’t Sec. of State, Bur. of Human Rts. and Humanitarian Aff..). See also id. at 55 (Statement of Robert Youngblood, Assoc. Prof. of Pol. Sci. and Affiliate with the Cent. of Asian Studs., Ariz. State Univ.), Marvin E. Frankel, Jack Greenberg & Diane F. Orentlicher, The Philippines: A Country in Crisis – A Report by the Lawyers Committee for International Human Rights, 15 COLUM. HUM. RTS. L. REV. 69, 70-84 (1983).

26 Report of the Working Grp. on Enforced or Involuntary Disappearances, Jan. 26, 1981, ¶ 146, U.N. Doc. E/CN.4/1435 (1981); Human Rights in the Philippines Hearing, at 50 (Excerpt from REPORT OF AN AMNESTY INTERNATIONAL MISSION TO THE REPUBLIC OF THE PHILIPPINES, 11-28 NOVEMBER 1981).

27 Human Rights in the Philippines Hearing, at 142 (Statement of William C. Wipfler, Director, Human Rts. Office Nat’l Council of Churches of Christ, U.S.A.).

31 Frankel et al., supra note 25, at 85 fns. 62-63; Special Rapporteur on Summary and Arbitrary Executions, ¶ 193, Comm’n on Human Rts., U.N. Doc. E/CN.4/1983/16 (Jan. 13, 1983) (noting that, in some cases, victims who were said to have been killed in armed encounters were actually killed during peaceful gatherings or during protests against the government).

36 CAFGUs refer to cadres of officers and men in the active force and qualified reservists residing in the locality. The CAFGUs upon recommendation of the Secretary of National Defense and approved by the President may be called or mobilized to complement the operations of the regular force of the AFP or to support the regular force formations or units. This is the reserve force development program of the Armed Forces of the Philippines as authorized under Executive Order No. 264, Series of 1987. See PARREÑO, supra note 14, at 3.

47 Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law Between the Government of the Republic of the Philippines and the National Democratic Front of the Philippines, Mar. 16, 1998, available at http://lib.ohchr.org/HRBodies/UPR/Documents/Session1/PH/KAR_PHL_UPR_S1_2 008anx_02.pdf.

56 Alston Report, supra note 8, at ¶ 17; Extrajudicial Killings in the Philippines: Strategies to End the Violence Hearing Before the S. Subcomm. on East Asian and Pac. Aff. of the Comm. on Foreign Relations, 110th Cong. 18 (2007) (Statement of T. Kumar, Advocacy Director for Asia and the Pac., Amnesty Int’l, USA).

57 MELO REPORT, supra note 5, at 5; PARREÑO, supra note 14, at 49.

58 Alston Report, supra note 8, at ¶¶ 19-20.

59 Id. at ¶¶ 22-24.

60 General Palparan was widely accused of responsibility for a number of extrajudicial killings in areas to which he had been assigned. Lira Dalangin-Fernandez, Arroyo censures murders, praises Palparan, PHIL. DAILY INQ., July 24, 2006, available at http://services.inquirer.net/print/print.php?article_id=11516. See also PARREÑO, supra note 4, at 18 (observing the high number of extrajudicial executions in places and times where Palparan served as commanding officer of the local infantry division).

63 See HUMAN RIGHTS WATCH, supra note 3, at 30-31 (reproducing a military identification card and secret order authorizing the distribution of a weapon to a soldier involved in an extrajudicial killing); see also HUMAN RIGHTS WATCH, supra note 10, passim (describing account by a military informant involved in extrajudicial killings of receipt of orders from ‘senior military commanders’ to kill activists or hide their bodies). See also PARREÑO, supra note 14, at 86-88.

64 Extrajudicial Killings in the Philippines: Strategies to End the Violence Hearing Before the S. Subcomm. on East Asian and Pac. Aff. of the Comm. on Foreign Relations, 110th Cong. 24 (2007) (Prepared Statement of T. Kumar, Advocacy Director for Asia and the Pac., Amnesty Int’l, USA).

65 HUMAN RIGHTS WATCH, supra note 10, at 39.

66 The President created Task Force Usig (Prosecution) in 2006. In March 2007, the Department of Justice created a Task Force of Prosecutors on Human Rights and Extrajudicial Killings. In July 2007, President Arroyo directed coordination between concerned agencies with regard to the investigation and prosecution of political killings. In November 2007, the President created a Task Force 211 or the Task Force against Political Violence. Human Rts. Comm., Fourth periodic reports of States parties – Philippines, Jan. 20, 2011, ¶ 158, U.N. Doc. CCPR/C/PHL/4.

72 See generally HUMAN RIGHTS WATCH, ‘THEY OWN THE PEOPLE’: THE AMPATUANS, STATE-BACKED MILITIAS, AND KILLINGS IN THE SOUTHERN PHILIPPINES (2010). See also Margaret Harris Cheng, World Report, Health workers detained in the Philippines, 375 LANCET 628 (2010) (describing the detention of health workers taking part in a disaster relief first- responder capacity training by the military).

74 President of the Philippines, Admin. Ord. No. 157 Creating an Independent Commission to Address Media and Activist Killings (Aug. 21, 2006), available at http://www.humanrights.gov.ph/docs/AO157.pdf; Aurea Calica, GMA to form new commission to probe political killings, PHIL. STAR, Aug. 18, 2006, available at http://www.philstar.com/Article.aspx?articleId=353525&publicationSubCategoryId=63.

81 Bills filed on the subject include S.B. 1427, The Command Responsibility Act of 2007 (2007); H.B. 3259, An Act Punishing Military Commanders or Superiors for Crimes or Offenses Committed by Their Subordinates Under The Principle of Command Responsibility (2007); S.B. 2608, An Act Providing a Framework for the Observance of Command Responsibility in Government Service (2010).

82 Details about this summit and its material proceedings are available through the Supreme Court’s website under the title National Summit on Extra Judicial Killings, http://sc.judiciary.gov.ph/publications/summit/.

86 The Supreme Court adopted the term ‘extralegal killing’ on the ground that this was in accordance with United Nations instruments. Phil. Sup. Ct., Annotation to the Writ of Amparo 3 fn. 10, available at http://sc.judiciary.gov.ph/Annotation_amparo.pdf. The United Nations, in fact, also uses the term ‘extrajudicial executions,’ hence the term Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions in use since 1992. U.N. Comm’n on Human Rts. Res. 1992/82 (Mar. 5, 1992).

87 Phil. Sup. Ct., Annotation to the Writ of Amparo 3, available at http://sc.judiciary.gov.ph/Annotation_amparo.pdf.

88 Id.

89 Id.

90 Gozon & Orosa, supra note 18, at 19.

91 Id.

92 Gozon & Orosa cite to what they state is a Report of the Working Group on Enforced or Involuntary Disappearances, U.N. Doc. E/CN.4/1984/14, at 46 (1983). This document number actually leads to a note by the Secretariat of the Commission on Human Rights stating that the Special Rapporteur on the Prevention of Discrimination and Protection of Minorities would be making a report available on ‘the new international economic order and the protection of human rights.’ Examination of the U.N. Working Group on Enforced or Involuntary Disappearance’s Reports for 1982, 1983 and 1984 to determine if these were the intended references does not show that these were the intended references either. Report of the Working Grp. on Enforced or Involuntary Disappearances, Jan. 21, 1983, U.N. Doc. E/CN.4/1983/14; Report of the Working Grp. on Enforced or Involuntary Disappearances, Dec. 9, 1983, U.N. Doc. E/CN.4/1984/21; Report of the Working Grp. on Enforced or Involuntary Disappearances, Jan. 23, 1985, U.N. Doc. E/CN.4/1985/15.

100 Convention for the Protection of Human Rights and Fundamental Freedoms arts. 2, 5-6, Nov. 4, 1950, 213 U.N.T.S. 222. More popularly known as the European Convention on Human Rights, this convention provides that, ‘[n]o one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.’ Id. at art. 2(1). It also provides for a right to liberty and security, id. at art. 5, and a right to a fair trial. Id. at art. 6.

108 A prominent example is the Argentine judiciary’s finding that the country’s prior military leaders were responsible for thousands of deaths. Argentina: National Appeals Court (Criminal Division) Judgment on Human Rights Violations by Former Military Leaders, 26 I.L.M. 317 (1987).

110 E.g., Human Rights and the Phenomenon of Disappearances, Hearings Before the H. Subcomm. on Int’l Orgs. of the Comm. on Foreign Aff., 96th Cong. 3 (1979) (Testimony of Jerome J. Shestack, President, Int’l Leage for Human Rts. describing the pattern of enforced disappearances “[i]n all countries” as being “remarkably the same”).

111 Id. at 74; Kaufman & Fagen, supra note 1, at 81.

112 Human Rights and the Phenomenon of Disappearances, Hearings Before the H. Subcomm. on Int’l Orgs. of the Comm. on Foreign Aff., 96th Cong. 74 (1979) (Testimony of Jerome J. Shestack, President, Int’l League for Human Rts.)

113 Political Killings by Governments of Their Citizens, Hearings Before the H. Subcomm. on Human Rts. and Int’l Orgs. of the H. Comm. on Foreign Aff., 98th Cong. 17-18 (1983) (excerpt from AMNESTY INTERNATIONAL, POLITICAL KILLINGS BY GOVERNMENTS (1983)).

119 Kaufman & Fagen, supra note 1, at 84 (‘in most countries in which EJE exists on a large scale, the members of armed opposition movements constitute only a fraction of the victims of government reprisals.’).

120 Political Killings by Governments of Their Citizens, Hearings Before the H. Subcomm. on Human Rts. and Int’l Orgs. of the H. Comm. on Foreign Aff., 98th Cong. 3 (1983) (testimony of Jose Zalaquett, deputy secretary general, Amnesty International); Human Rights and the Phenomenon of Disappearances, Hearings Before the H. Subcomm. on Int’l Orgs. of the Comm. on Foreign Aff.., 96th Cong. 75 (1979) (statement of David Hinkley, Chairman, Amnesty Int’l, Washington Office).

122 Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 278.

123 See infra notes 143-145.

124 See Naomi Roht-Arriaza, Comment, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 CAL. L. REV. 449, 452 (1990) (arguing for the recognition of a state obligation to investigate and prosecute human rights violations including enforced disappearances and extrajudicial killings).

133 Article 14 of the ICCPR provides for procedural and substantive protections for persons facing criminal charges or other suits at law. These include, among others, the right to be presumed innocent, the right to a fair and public hearing by a competent and independent tribunal, and the right to be tried without undue delay.

134 Report of the Special Rapporteur on Summary and Arbitrary Executions, ¶ 66, U.N. Doc. E/CN.4/1983/16 (Jan. 13, 1983). Wako acknowledged that his definitions of arbitrary and extralegal execution could overlap. Id. Indeed, they are probably identical given how unlikely it is, outside the genuine context of law enforcement, that a government could take a life without ‘judicial or legal process’ without violating national law.

139 Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders Res. 5, Rep. of the Sixth U.N. Cong. on the Prevention of Crime and the Treatment of Offenders, U.N. Doc. A/CONF.87/14/Rev.1, at 8-9, 78-79 ¶ 214 (Aug. 25, 1980 – Sept. 5, 1980). The Philippines, along with Argentina, Chile, Egypt, Ethiopia, Indonesia and Uruguay, abstained from voting on the resolution. Id.

140 Id. at 8-9.

141 G.A. Res. 35/171, U.N. Doc. A/RES/35/171 (Dec. 15, 1980).

142 See U.N. MANUAL ON THE EFFECTIVE PREVENTION AND INVESTIGATION OF EXTRA-LEGAL, ARBITRARY AND SUMMARY EXECUTIONS, pt. I.A.1., U.N. Doc. E/ST/CSDHA.12 (1991) (‘a gap existed in international protection against arbitrary or summary executions’).

143 Convention (IV) relative to the Protection of Civilian Persons in Time of War art. 3, Aug. 12, 1949, 75 U.N.T.S. 288; Convention (III) relative to the Treatment of Prisoners of War art. 3, Aug. 12, 1949, 75 U.N.T.S. 136; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea art. 3, Aug. 12, 1949, 75 U.N.T.S. 86; Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 75 U.N.T.S. 32.

144 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) arts. 4, 13, June 8, 1977, 1125 U.N.T.S. 610.

151 Political Killings by Governments of Their Citizens, Hearings Before the H. Subcomm. on Human Rts. and Int’l Orgs. of the H. Comm. on Foreign Aff.., 98th Cong. 17-18 (1983) (excerpt from POLITICAL KILLINGS BY GOVERNMENTS, a publication of Amnesty International).

155 Report of the Special Rapporteur on Summary and Arbitrary Executions, ¶ 224, U.N. Doc. E/CN.4/1983/16 (‘Governments have been extremely reluctant to investigate cases and where found guilty to punish those law enforcement officers or civilians who have acted with their authority, complicity or acquiescence who are guilty of summarily or arbitrarily executing persons.’).

159 Report of the Working Grp. on Enforced or Involuntary Disappearances, Jan. 26, 1981, ¶¶ 3, 9, U.N. Doc. E/CN.4/1435 (1981) (‘Working Grp. Enforced Disappearances 1981 Report’) (stating that the ‘vast majority’ of cases confronted by the Working Group concerned ‘persons who had been arrested, detained or abducted by personnel belonging to a body which was either established as or believed to be, an organ of Government; or controlled by Government; or operating with the overt or latent complicity of Government; and the Government concerned in these cases neither accepted responsibility for the arrest, detention or abduction, nor accounted for these actions.’).

160 Id. at ¶ 45.

161 Id. at ¶ 187. See also Report of the Working Grp. on Enforced or Involuntary Disappearances, Dec. 9, 1983, ¶ 155, U.N. Doc. E/CN.4/1492 (1983).

162 Working Grp. Enforced Disappearances 1981 Report, ¶ 187.

163 See Political Killings by Governments of Their Citizens, Hearings Before the H. Subcomm. on Human Rts. and Int’l Orgs. of the H. Comm. on Foreign Aff.., 98th Cong. 41-42 (1983) (testimony of Jose Zalaquett, deputy secretary general, Amnesty International) (testimony of Zalaquett that ‘significant agreement does exist already’ regarding the nature of political or extrajudicial killings).

164 See Raquel Aldana-Pindell, In Vindication of Justiciable Victims’ Rights to Truth and Justice for State-Sponsored Crimes, 35 VAND. J. TRANSNAT’L L. 1399, 1412-14 (2002). In the Working Group’s 1981 Report suggesting that there was a right to know, the Working Group’s primary authority was Additional Protocol I of the Geneva Convention. Working Grp. Enforced Disappearances 1981 Report, ¶ 187. Additional Protocol I only requires that, in international armed conflicts, parties search for persons who have been reported missing by an adverse party. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) art. 33, Aug 6, 1977, 1125 U.N.T.S. 4. Notably, Additional Protocol I does not apply to situations where a citizen of a State seeks information from his or her own State concerning a missing person.

165 E.g., International Covenant on Civil and Political Rights art. 2 (take care clause and the right to a remedy); Convention for the Protection of Human Rights and Fundamental Freedoms arts. 1 (State obligation to respect human rights), 5 (enforceable right to compensation for violations of the right to liberty and security), 13 (right to an effective remedy); American Convention on Human Rights arts. 1 (obligation to respect rights and freedoms), 25 (right to judicial protection in case of violations of fundamental rights). See also International Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106 (XX), art. 6, 660 U.N.T.S. 195 (Mar. 7, 1966); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, art. 39, 1465 U.N.T.S. 85 (Dec. 10, 1984). For a fuller list of conventions and declarations see M. Cherif Bassiouni, International Recognition of Victims’ Rights, 6 HUMAN RTS. L. REV. 203, 213-18 (2006).

169 Bassiouni, supra note 165, at 226 (referring to Velásquez Rodríguez as the ‘groundbreaking case’ in which a duty to investigate and prosecute for human rights violations was determined); Linda Drucker, Governmental Liability for ‘Disappearances’: A Landmark Ruling by the Inter-American Court of Human Rights, 25 STAN. J. INT’L L. 289, 319 (1988) (Velásquez Rodríguez was a ‘landmark decision that sets a precedent for future cases against other Latin American regimes.’). The case’s significance may also derive from the media publicity that accompanied it and the assassinations of two witnesses. Id. at 289-90. In addition, the case was the first in which a Latin American nation was found by the Inter- American Court of Human Rights to have violated the American Declaration on Human Rights. Id. at 289.

180 The Court’s judgment references the work of the Working Group and the special rapporteurs as showing ‘concern that the practice of disappearances be stopped, the victims reappear and that those responsible be punished.’ Velásquez Rodríguez, supra note 168, at ¶ 151.

181 Velásquez Rodríguez, supra note 168, at ¶ 149.

182 Political Killings by Governments of Their Citizens, Hearings Before the H. Subcomm. on Human Rts. and Int’l Orgs. of the H. Comm. on Foreign Aff.., 98th Cong. 11 (1983) (testimony of Jose Zalaquett, deputy secretary general, Amnesty International).

184 Inter-American Convention on Forced Disappearance of Persons, art. II, June 9, 1994, 33 I.L.M. 1529, 1530 (1994). An enforced disappearance under this Convention is defined as follows: ‘[f]or the purposes of this Convention, forced disappearance is considered to be the act of depriving a person or persons of his or their freedom, in whatever way, perpetrated by agents of the state or by persons or groups of persons acting with the authorization, support, or acquiescence of the state, followed by an absence of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees.’ The Declaration on the Protection of all Persons from Enforced Disappearance defines an enforced disappearance as follows: ‘enforced disappearances occur, in the sense that persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government, or by organized groups of individuals acting on behalf of, or with support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law.’ G.A. Res. 47/133, preamble, U.N. Doc. A/RES/47/133 (Dec. 18, 1992).

185 International Convention for the Protection of All Persons from Enforced Disappearance art. 2, U.N. Doc. A/61/488 (Dec. 20, 2006). Under Article 2, an ‘enforced disappearance’ is ‘considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such person outside the protection of the law.’

186 Weissbrodt & Rosen, supra note 93, at 590 (suggesting that the terms ‘extra-legal,’ ‘arbitrary,’ and ‘summary’ execution ‘may be developing an international customary definition’ but that ‘[a]s international law evolves, so may the concepts of extra-legal, arbitrary and summary deprivations of life.’). A meditation on non-State actors and human rights obligations was contained in Special Rapporteur Philip Alston’s 2004 report. Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, ¶¶ 65-72 , U.N. Doc. E/CN.4/2005/7 (Dec. 22, 2004). In the 2004 Report, Alston

187 Katja Luopajärvi, Research Report No. 10, Inst. of Human Rights at Åbo Akademi Univ., Extrajudicial, Summary or Arbitrary Executions – The Scope of the Mandate of the Special Rapporteur 4-7 (2010), https://www.abo.fi/media/24259/report10.pdf.

188 See, e.g., Report of the Special Rapporteur on Summary or Arbitrary Executions, ¶ 165, U.N. Doc. E/CN.4/1986/21 (Feb. 7, 1986) (observing that, in situations of internal armed conflict, ‘[a]s many killings are done by non-governmental groups as by government agencies.’).

189 Political Killings by Governments of Their Citizens, Hearings Before the H. Subcomm. on Human Rts. and Int’l Orgs. of the H. Comm. on Foreign Aff.., 98th Cong. 3 (1983) (testimony of Jose Zalaquett, deputy secretary general, Amnesty International).

190 Id. See also Human Rights and the Phenomenon of Disappearances, Hearings Before the H. Subcomm. on Int’l Orgs. of the Comm. on Foreign Aff.., 96th Cong. 75 (1979) (testimony of David Hinley, Chairman, Amnesty Int’l, Washington Office) (arguing that government killings are distinct as government violations of human rights can only be addressed by ‘the international climate of public opinion’).

191 Report of the Special Rapporteur on Summary and Arbitrary Executions, ¶ 98, U.N. Doc. E/CN.4/1984/29.

196 Human Rts. Comm., Gen. Cmt. No. 06: The right to life (art. 6) ¶ 3, U.N. Doc. HRI/GEN/1/Rev.6 at 127 (Apr. 30, 1982) (‘The Committee considers that States parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces. The

201 Report of the Working Grp. on Enforced or Involuntary Disappearances, Jan. 26, 1981, ¶ 187, U.N. Doc. E/CN.4/1435 (1981). See also Report of the Working Grp. on Enforced or Involuntary Disappearances, Dec. 9, 1983, ¶¶ 155-61, U.N. Doc. E/CN.4/21 (1983) (discussing resulting violations of the human rights of the families of victims of enforced disappearances especially children and mothers).

202 Velásquez Rodríguez, supra note 168, at ¶ 177.

203 Roht-Arriaza, supra note 124, at 470.

204 See McCann & Others v. United Kingdom, 21 Eur. Ct. H.R. 324 at ¶ 161 (1995) (obligation to protect right to life in conjunction with duty to secure guaranteed rights ‘requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State.’); Human Rts. Comm., Gen. Cmt. No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant ¶ 8, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (May 26, 2004) (States may violate ICCPR rights by ‘permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities.’).

205 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, G.A. Res. 60/147, U.N. Doc. A/RES/60/147 (Dec. 16, 2005); International Convention for the Protection of All Persons from Enforced Disappearances art. 24(2) (‘Each victim has the right to know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person.’); Barrios Altos v. Peru, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 75, ¶ 45-49 (Mar. 14, 2001) (Right to the truth of relatives of victims of extrajudicial execution violated). See also Bassiouni, supra note 165, at 275-76.

208 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law ¶ 8 (victims of gross human rights violations include ‘the immediate family of dependents of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.’); International Convention for the Protection of All Persons from Enforced Disappearances art. 24(1) (defining a ‘victim’ as the ‘disappeared person and any individual who has suffered harm as the direct result of an enforced disappearance.’).

211 Juan Humberto Sánchez, supra note 206, at ¶¶ 44, 58, 102 (acceptance by Inter- American Court of the view that, ‘A death in and of itself is difficult to overcome, but even more so when it is violent and, furthermore, at the hands of the State.’).

219 Rep. Act No. 9851, Sec. 2(d). The Philippine Constitution, in fact, states that ‘generally accepted principles of international law’ are ‘part of the law of the land.’ PHIL. CONST. art. II sec. 2 (1987).

241 Phil. Sup. Ct., Admin. Ord. 25-07, Re: Designation of Special Courts to Hear, Try and Decide Cases Involving Killings of Political Activists and Members of Media (Mar. 1, 2007), available at http://humanwrongs.org/?page_id=781.

246 It is sometimes suggested that no new legislation need be passed to address extrajudicial killings, only that there be further facilitation of prosecution. E.g., Teodoro L. Locsin Jr., Rep., ‘Just do it,’ Paper Presented to the Supreme Court’s National Summit on Extra Judicial Killings (2007), available at http://sc.judiciary.gov.ph/publications/summit/ Summit%20Papers/Locsin%20-%20Just%20do%20it.pdf (declaring that ‘Congress can have no fruitful role to play’ in addressing extrajudicial killings and requesting ‘the judiciary to be quicker and more aggressive in addressing human rights cases even under existing rules’).

247 See United States Mission to the Philippines, Country Assistance Strategy – Philippines: 2009-2013 9 (2009), available at http://pdf.usaid.gov/pdf_docs/ PDACN452.pdf.

248 See Parreño, supra note 240. Such acts are treated as murders under either Article 248 or 249 of the Revised Penal Code.

250 Comm. to Protect Journalists, Special Reports, Getting Away With Murder, June 1, 2011, http://www.cpj.org/reports/2011/06/2011-impunity-index-getting-away-murder.php (ranking the Philippines as the third worst country where ‘journalists are murdered on a recurring basis and governments are unable or unwilling to prosecute the killers’).

252 This is partly the approach of Supreme Court Administrative Order 25-07, supra note 241, which provides: ‘[i]n determining whether the crime is a ‘political killing’, the following factors, among others, shall be considered: (1) political affiliation of the victim; (2) method of attack; and (3) reports that state agents are involved in the commission of the crime or have acquiesced in them.’

279 While it can be difficult to establish state culpability, there are ways in which it can be found. First, and most simply, the perpetrators may be identified by clearly visible military insignia either on their uniforms or the vehicles they are driving. Second, the ‘disappeared’ may be released or escape after a period in police or military custody. Third, the victim may be found dead in police or military custody. Finally, even where the perpetrators are not self-evidently members of a military or paramilitary unit, eyewitnesses may be able to identify one or more of them by name or to identify some piece of their property, such as a vehicle, a weapon or an article of clothing. AMNESTY INT’L, PHILIPPINES: ‘DISAPPEARANCES’ IN THE CONTEXT OF COUNTER-INSURGENCY 5 (1991).

ISLAMIC CONVERSION AS ALTERNATIVE TO CIVIL DIVORCE: ADDRESSING TENSIONS BETWEEN FREEDOM OF RELIGION AND THE INVIOLABLE INSTITUTION OF MARRIAGE

‘Haven’t you read,’ he replied, ‘that at the beginning the Creator ‘made them male and female,’ and said, ‘For this reason a man will leave his father and mother and be united to his wife, and the two will become one flesh’? So they are no longer two, but one. Therefore what God has joined together, let man not separate.’
- Matthew 19:4-61

“Of all things allowed, divorce is the most hateful in the sight of Allah.”
- The Prophet Muhammad2

I. INTRODUCTION

At the heart of a constitution are values shared by the people of a nation. The constitution, as the fundamental law, is the expression of the sacred convictions of a body politic imbued with “legal guarantees”3 in order to animate their deepest desires to achieve individual and collective freedom.

The 1987 Philippine Constitution regards religious freedom as a value of the highest order. It recognizes and guarantees the fundamental nature of the freedom of an individual to espouse a personal spiritual conviction and belief. The State is not only enjoined to respect religious freedom, but is required to hurdle the threshold of compelling interest in order to legitimately regulate this valued freedom. James Madison, the principal author and sponsor of the First Amendment of the United States Constitution,4 articulated this fundamental right in this wise:

[W]e hold it for a fundamental and undeniable truth, ‘that Religion or the duty which we owe to our Creator and the Manner of discharging it, can be directed only by reason and conviction, not by force or violence.’ The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right.5

Freedom of religion, however, exists with other values in the Philippine constitutional sphere. Any reasonable interpretation of this freedom must consider these other values, and its responsible exercise necessitates utmost regard to the demands of these values.6

The delicate interplay between religious freedom and other constitutional values serves as a backdrop for a careful scrutiny of a looming contemporary practice in the Philippines – the use of Islam as an alternative to civil divorce, whereby a male legally married under Civil Law converts to Islamic faith in order to contract another marriage. Islamic conversion in the contemporary practice has two overriding objectives: (1) to capacitate the male to remarry without any legal impediment and liability, and (2) to enable the male to contract a subsequent marriage that is legally recognized.

The contemporary practice of converting to Islamic faith in order to contract a subsequent marriage generates tensions between religious freedom and marriage, an inviolable social institution under the 1987 Philippine Constitution. This practice compromises the institution of marriage as it capitalizes on the protective mantle of the free exercise clause.

The absence of a bona fide intention to convert to Islamic faith highlights the abuse of the freedom of religion, while the creation of a subsequent marital bond undermines the institution of marriage. The contemporary practice also offends Islamic faith and the Shari’a, the very means utilized to achieve the anomalous ends of the practice.

Addressing these tensions is imperative, and an adequate response to the contemporary practice calls for a four-fold approach: (1) understanding the contemporary practice, (2) appreciating Islamic Law on marriage and divorce in the Philippines, (3) analyzing the legal tensions between the constitutional values of religious freedom and the institution of marriage, and (4) resolving the legal tensions through the benevolent neutrality approach applied in Philippine jurisprudence.

II. THE CONTEMPORARY PRACTICE

A. DIVORCE IN THE PHILIPPINES

The current state of domestic law on absolute divorce serves as the impetus for the emergence of the contemporary practice. The history and development of divorce law in the Philippines provides an analytical backdrop in understanding the basis and considerations of the contemporary practice.

1) History of Divorce Law in the Philippines

The law governing divorce in the Philippines has undergone several major changes since the Spanish colonization. The first divorce statute was embodied in the Siete Partidas,7 a Castilian legal code made applicable in the Philippines by virtue of a Spanish Royal Decree issued in 1530.8 The fourth Partida of the Siete Partidas provided for relative divorce,9 or the juridical separation in bed and board without the dissolution of marriage.10 The Spanish Civil Code of 1889 introduced additional grounds for relative divorce, thus liberalizing the divorce statute in the Siete Partidas wherein marital infidelity was the sole ground for divorce.11 However, the relevant provisions on divorce were later suspended by then Spanish Governor-General Valeriano Weyler in an order published on 31 December 1889.12

The divorce statute in the Siete Partidas was subsequently repealed under the American regime. On 11 March 1917, the Philippine Legislature enacted Act No. 2710 or the Divorce Law.13 This law abrogated relative divorce as provided in the Siete Partidas, and introduced absolute divorce or the complete dissolution of the bonds of matrimony, thereby capacitating the erstwhile husband and wife to remarry.14 Section 1 of the Divorce Law provided two grounds for divorce, namely: “adultery of the wife or concubinage on the part of the husband.”15 Section 8 of the Divorce Law further provided that “[a] divorce shall not be granted without the guilt of the defendant being established by final sentence in a criminal action.”16

The Divorce Law was repealed during the Japanese occupation in the Second World War. Pursuant to the authority and approval of the Commander-in-Chief of the Imperial Japanese Forces, the Chairman of the Philippine Executive Commission promulgated Executive Order No. 141 or the New Divorce Law on 25 March 1943.17 The New Divorce Law provided eleven grounds for divorce, including the two grounds of adultery and concubinage previously provided under the repealed Act No. 2710.18 However, the New Divorce Law was short-lived, as Act No. 2710 was revived upon the liberation of the Philippines from Japanese occupation.19 Executive Order No. 141 ceased to have any legal force and effect in the Philippines by virtue of the proclamation of General Douglas McArthur on 23 October 1944.20

The institution of the Philippine Republic after the Second World War heralded a major shift in the domestic law governing divorce. Executive Order No. 48, issued by then President Manuel A. Roxas, established a Code Commission that aimed “to introduce amendments that would be more reflective of the customs and traditions, even idiosyncracies, of the Filipino People.”21 The Code Commission proceeded to revise the antiquated Spanish Civil Code of 1889.22 The resulting statute, Republic Act No. 386 or the Civil Code of the Philippines (hereinafter “Civil Code”), was approved on 18 June 1949 and took effect on 30 August 1950.23

One of the dominant themes evident in the Civil Code was the family as an institution.24 The theme served as the policy basis for the elimination of absolute divorce in the statute, and was further reinforced by “the strong opposition from the Catholic population of the country.”25 Thus, the Civil Code only permitted relative divorce.26 It should be noted that the Civil Code, in line with the proposals of female advocates during the deliberations on the statute in the Philippine Congress, utilized the term “legal separation” instead of “relative divorce.”27 The purpose was to prevent any possible association with the negative connotation of the term “divorce.”28 Notwithstanding the difference in terminology, legal separation and relative divorce are identical with respect to legal effects and consequences.29 Article 97 of the Civil Code provided two grounds for legal separation: (1) adultery on the part of the wife or concubinage on the part of the husband as defined in the Penal Code, and (3) an attempt by one spouse against the life of the other.

Executive Order No. 209 or the Family Code of the Philippines (hereinafter “Family Code”) introduced significant changes to the Civil Code, and is the existing governing law in all matters relating to family relations.30 The brief submitted by the Civil Code Revision Committee of the University of the Philippines (U.P.) Law Center to then President Corazon C. Aquino emphasized the rationale for the development of the Family Code:

Close to forty years of experience under the Civil Code adopted in 1949, and changes and developments in all aspects of Filipino life since then, have revealed the unsuitability of certain provisions of that Code, implanted from foreign sources to Philippine culture; the unfairness, unjustness, and gaps or inadequacies of others, and the need to attune them to contemporary developments and trends.31

The underlying framework of the Family Code is the recognition of marriage as an inviolable social institution.32 This underscores the alignment of the Family Code with Section 2, Article XV of the 1987 Philippine Constitution, which expressly acknowledges marriage as an inviolable social institution and the foundation of the family.33 In this light, the overriding policy is to provide no statutory room for absolute divorce, and retain relative divorce as the only recognized form of lawful divorce.34

It should be noted that the Family Code also uses the term “legal separation” instead of “relative divorce.” Furthermore, Article 55 of the Family Code provides ten grounds for legal separation. This is in response to the “absurdity of limiting the grounds for legal separation to the antiquated two grounds under the Civil Code.”35

2) Absolute Divorce in Contemporary Philippines

On 29 July 2011, the predominantly Roman Catholic state of Malta enacted a divorce law.36 This leaves the Philippines and the Vatican City as the two remaining states without any statute providing for absolute divorce.37 The following statement outlines the status of absolute divorce across different jurisdictions and contextualizes the state of absolute divorce in the Philippines:

Of the 195 countries in the world, only [two] do not currently allow for divorce . . . This total includes all 53 countries in Africa, 52 out of the 53 in Asia, [all] 48 in Europe, all 13 in South America, and all 7 in Central America. Each of these incredibly diverse countries—whether Christian, Muslim or Buddhist, democracy or dictatorship—have adopted some form of divorce law except for the Philippines and Vatican City.

Included among the vast majority of countries is Italy, the home base of Roman Catholicism, which amended its Civil Code on December 1, 1970 to permit the granting of divorces. Also included is Spain, the country which brought Christianity to the Philippines, which passed a divorce law in 1981. Ireland, the country that has sent more Catholic priests to the Philippines than perhaps any other country, prohibited divorce in its 1937 Constitution but repealed
this prohibition in 1995.

All over the world, people and nations have accepted the wisdom and justice of providing for some form of dissolution of a state-sanctioned marriage except understandably for Vatican City, the eternal bastion of total male superiority which will never need to pass a divorce law for its assorted priests, bishops, cardinals, and its Holy Father Pope. And, inexplicably, for the Philippines, which has had two women presidents and where women comprise the majority
of its population.38

The strong Roman Catholic influence in the Philippines is a significant factor in the exclusion of absolute divorce in the Civil Code and the Family Code.39 Furthermore, the constitutional framework on marriage as an inviolable social institution functions as the paramount consideration in excluding absolute divorce as a permissible mode of dissolution of marital bonds.

3) Article 36 of the Family Code

While absolute divorce is not a recognized mode of dissolution of marriage in the Family Code, an alternative to such form of divorce has been incorporated in the statute. Article 36 of the Family Code deals with psychological incapacity as a ground for the declaration of a marriage as inexistent from the beginning or void ab initio. Article 36 provides:

A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.

Article 36 of the Family Code was patterned after Canon 1095 (3) of the New Code of Canon Law.40 According to Canon 1095 (3), “[t]hose who, because of causes of a psychological nature, are unable to assume the essential obligations of marriage” are incapacitated to contract marriage.41 The Civil Code Revision Committee, responsible for the completion of the draft of the Family Code, specified three reasons for the incorporation of Canon 1095 (3) as an additional ground for the declaration of nullity of marriage.

First, Article 36 of the Family Code functions as a “substitute for divorce,” in view of the antagonism and adverse sentiment of the Roman Catholic Church and the predominantly Catholic population toward the institutionalization of absolute divorce in the Philippines.42 Consequently, the article furnishes a ground for the dissolution of marriage that is aligned with Canon Law. The following statement of Justice Flerida Ruth P. Romero, in her concurring opinion in Santos v. Court of Appeals and Bedia-Santos,43 elucidates the first reason for the incorporation of Article 36:

[C]onsidering the Christian traditional concept of marriage of the Filipino people as a permanent, inviolable, indissoluble social institution upon which the family and society are founded, and also realizing the strong opposition that any provision on absolute divorce would encounter from the Catholic Church and the Catholic sector of our citizenry to whom the great majority of our people belong, the two Committees in their joint meetings did not pursue the idea of absolute divorce and instead opted for an action for judicial declaration of invalidity of marriage based on grounds available in the Canon Law. It was thought that such an action would not only be an acceptable alternative to divorce but would also solve the nagging problem of church annulments of marriages on grounds not recognized by the civil law of the State.44 (emphases supplied)

Second, Article 36 of the Family Code provides a viable remedy to the anomaly resulting from marriages that have been annulled by the Roman Catholic Church but remained subsisting under Civil Law.45 Justice Romero described the anomaly in this wise:

Such so-called church “annulments” are not recognized by Civil Law as severing the marriage ties as to capacitate the parties to enter lawfully into another marriage. The grounds for nullifying civil marriage, not being congruent with those laid down by Canon Law, the former being more strict, quite a number of married couples have found themselves in limbo—freed from the marriage bonds in the eyes of the Catholic Church but yet unable to contract a valid civil marriage under state laws. Heedless of civil law sanctions, some persons contract new marriages or enter into live-in relationships.46

Finally, the Civil Code Revision Committee envisioned Article 36 of the Family Code as a statutory remedy available to parties bound by marital ties that exist merely in legal designation, but in reality broken by separation due to the incapacity of either or both to fulfill the essential marital obligations.47

In Republic v. Court of Appeals and Molina,48 the Philippine Supreme Court outlined several key guidelines and principles in the interpretation of psychological incapacity in Article 36 of the Family Code. Among the key guidelines and principles are the following:

a. The incapacity should not be physical in nature but rather psychological, although the manifestations or symptoms of the incapacity may be physical.

b. The incapacity must be shown to exist at the time of the celebration of the marriage.

c. The incapacity must be proven to be medically or clinicallypermanent or incurable.

d. The incapacity must be sufficiently grave as to disable a party to fulfill the essential marital obligations. The incapacity should not be equated to refusal, neglect, difficulty, or ill will.49

The Philippine Supreme Court, however, emphasized in Ngo Te v. Yu-Te that the interpretation of Article 36 of the Family Code should be “on a case-to-case basis; guided by experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals.”50 The Court underscored the principle that “each case must be judged, not on the basis of a priori assumptions, predilections or generalizations but according to its own facts.”51

B. THE CONTEMPORARY PRACTICE

In addition to Article 36 of the Family Code, another alternative to divorce has emerged in the Philippines: conversion to Islam. Males that have subsisting valid marriages under Civil Law purposely convert to Islamic faith with the sole intention of contracting another marriage that is legally recognized. The contemporary practice capitalizes on the permissibility of polygamy in Islam, whereby the act of conversion to Islamic faith capacitates the male to contract a subsequent marriage.

The contemporary practice is characterized by two overriding objectives on the part of the male. First, the male aspires to possess the capacity to remarry without any legal impediment and liability. Second, the male seeks to contract another marriage that is legally recognized. Islamic conversion proves to be a viable means of achieving these overriding objectives.

It is critical to underscore the dearth of published reports concerning the contemporary practice. By its very nature, the reason for the lack of reports is readily apparent—the practice is carried out with a considerable degree of secrecy to mask the real intentions of the male converting to Islam. In this light, interviews are necessary to provide actual accounts that attest to the existence of the practice and reveal its underlying considerations.

Arnulfo is a Roman Catholic. In 1981, he married Carina in a church wedding in Manila. After a year, the marriage was blessed with a child. Arnulfo admits to having several extra-marital relations after the wedding, but stated that none was of a serious nature. However, after 22 years of marriage, he developed a serious relationship with Marissa. Marissa was single, and younger than Arnulfo by 21 years.

In 2004, the marriage of Arnulfo and Carina experienced severe strain primarily due to financial difficulties. Incessant quarrels with Carina over financial matters provided an aperture for Arnulfo to contemplate on leaving his wife. He thereafter started losing affection for Carina. On the other hand, his relationship with Marissa flourished and their commitment to each other strengthened. Arnulfo regards Marissa as the love of his life, and considers his
relationship with Marissa as an emotional sanctuary.

Arnulfo and Marissa seriously considered living together, and explored the possibility of solemnizing their relationship. They started discussing possible options. Arnulfo suggested that a marriage under Muslim Law was a practical alternative. He apprised Marissa of the effect of conversion to Islam and the validity of a subsequent marriage under Muslim Law, stressing that conversion will allow him to contract another marriage without being held liable for the crime of bigamy. Furthermore, Arnulfo stated that the subsequent marriage would be legitimate under Muslim Law.

In 2005, Arnulfo finally decided to leave Carina. He left the conjugal home and secretly lived with Marissa. Subsequently, Arnulfo and Marissa decided to marry, with the agreement that Arnulfo will convert to Islam and that the marriage will be contracted under Muslim Law. He converted to Islam and soon thereafter married Marissa under Islamic rites. According to Arnulfo, the conversion and marriage transpired without the knowledge and consent of
Carina.

Notwithstanding his conversion and subsequent marriage, Arnulfo continues to adhere to the Catholic faith. He regularly hears Sunday masses with Marissa. He also observes Catholic traditions, including Advent and Holy Week.

Bernardo is a Roman Catholic. He married Luz in 1969. At the time of the marriage, Bernardo was only 16 years old and Luz was 21 years old. After 5 years of marriage, the frustration of Bernardo loomed, as the marriage was still not blessed with a child.

In 1974, Bernardo was introduced to Nita. Bernardo admits to having felt an instant attraction to Nita, and consequently pursued her. Bernardo eventually developed an extra-marital relationship with Nita.

The marriage of Bernardo and Luz, on the other hand, continued to be filled with disappointment. The spouses have not been blessed with a child, despite resort to all available medical and spiritual means in order for Luz to conceive. The frustration of Bernardo resulted in a bitter gap in the marriage, while his relationship with Nita provided hope for his aspiration of becoming a father.

Nita eventually became pregnant. According to Bernardo, the pregnancy of Nita was the turning point in his marriage. He felt a strong desire to leave Luz and start a new life with Nita. This was reinforced by a feeling of responsibility to provide a genuine sense of family to Nita and their unborn child. In 1976, Bernardo eventually left the conjugal home and lived with Nita.

At this time, he proposed to Nita and revealed his plan of marrying her under Muslim Law. He explained to Nita the importance of attaining legitimacy with respect to their relationship and the status of the child. Thus, Bernardo converted to Islam and thereafter married Nita under Islamic rites. The conversion and marriage transpired without the knowledge and consent of Luz.

Bernardo continues to practice the Catholic faith despite his conversion to Islam and his subsequent marriage under Muslim Law. He likewise raised his child with Nita according to Catholic traditions.

3) Legal Considerations of the Contemporary Practice

The preceding interviews bring to light the two overriding objectives on the part of the male: (1) to possess the capacity to remarry without any legal impediment and liability, and (2) to contract another marriage that is legally recognized. These overriding objectives reveal several legal considerations of the contemporary practice involving the interplay between three statutes: the Family Code, the Revised Penal Code,54 and the Code of Muslim Personal Laws of the Philippines55 (hereinafter “Muslim Code”).

Article 35 (4) of the Family Code provides that bigamous marriages are void from the beginning.56 A bigamous marriage is one that “would have been valid were it not for the subsistence of the first marriage.”57 In light of the overriding objective of the male to contract another marriage that is lawful, the provision on subsequent marriage in the Muslim Code is of utmost importance to the contemporary practice. Article 27 of the Muslim Code expressly recognizes the permissibility of polygamy in Islam subject to specified conditions. Marriages falling within the ambit of Article 27 are exempted from the coverage of Article 35 (4) of the Family Code. Article 27 provides:

Notwithstanding the rule of Islamic law permitting a Muslim to have more than one wife but not more than four at a time, no Muslim male can have more than one wife unless he can deal with them with equal companionship and just treatment as enjoined by Islamic law and only in exceptional cases. (emphasis supplied)

However, conversion to Islamic faith is essential for the Muslim Code to apply. Furthermore, where only the male converts to Islam and the female remains a non-Muslim, the marriage must have been solemnized in accordance with the Muslim Code or with Muslim Law to render operative and applicable the pertinent provisions of the Muslim Code. Otherwise, the Family Code shall apply to the marriage of a Muslim male and a non-Muslim female if it is not solemnized in accordance with the Muslim Code or with Muslim Law.58 Article 13 of the Muslim Code states:

(1) The provisions of this Title [Title II. Marriage and Divorce] shall apply to marriage and divorce wherein both parties are Muslims, or wherein only the male party is a Muslim and the marriage is solemnized in accordance with Muslim law or this Code in any part of the Philippines.

(2) In case of a marriage between a Muslim and a non-Muslim, solemnized not in accordance with Muslim law or this Code, the Civil Code of the Philippines59 shall apply.

(3) Subject to the provisions of the preceding paragraphs, the essential requisites and legal impediments to marriage, divorce, paternity and filiation, guardianship and custody of minors, support and maintenance, claims for customary dower (mahr), betrothal, breach of contract to marry, solemnization and registration of marriage and divorce, rights and obligations between husband and wife, parental authority, and the property relations between husband and wife shall be governed by this Code and other applicable Muslim laws. (emphases supplied)

With respect to the overriding objective of the male to possess the capacity to remarry without legal impediment and liability, the Muslim Code expressly provides an exemption to the penal provision against bigamy. Article 349 of the Revised Penal Code penalizes bigamy as follows:

The penalty of prisión mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse had been declared presumptively dead by means of a judgment rendered in the proper proceedings.

The elements of bigamy, as provided for in Article 349 of the Revised Penal Code, are the following:

1) that the offender is legally married
2) that the first marriage has not been legally dissolved
3) that he contracts a second or subsequent marriage
4) that the second or subsequent marriage has all the essential requisites for validity.60

On its face, the contemporary practice satisfies all the elements of bigamy. However, Article 180 of the Muslim Code, in relation to Article 27 thereof, provides a clear exemption to the application of Article 349 of the Revised Penal Code. Article 180 specifically states that “[t]he provisions of the Revised Penal Code relative to the crime of bigamy shall not apply to a person married in accordance with the provisions of this Code or, before its effectivity, under Muslim law.”

III. THE ISLAMIC LEGAL FRAMEWORK ON MARRIAGE

The current practice of using Islam as an alternative to divorce creates seemingly irreconcilable tensions between the constitutional values of religious freedom and the inviolable institution of marriage. Addressing these tensions requires an appreciation of Islamic Law governing Muslim marriages in the Philippines, as this legal system uniquely exists within a constitutional and statutory framework that generally prohibits the dissolution of marital ties by means of divorce, considers bigamous marriages as void ab initio, and penalizes the crime of bigamy.

A. ISLAM AS CONVERGENCE OF THE REALMS OF THE SPIRITUAL, MORAL AND LEGAL

The religious tradition of Islam is unique in that spiritual and moral norms are intricately integrated with legal rules, thus creating a system that shapes the contours of religious dogma into one that is ‘legally enforceable’ – the Shari’a or Muslim Law.61 As then Minister of Justice Ricardo C. Puno aptly put it, the Islamic faith “is inextricably intertwined with the legal system, the unique character of an all-encompassing religion which permeates every aspect of the life of its followers.”62 The constitutional principle of the separation between the Church and State, including the adjunct doctrines pertaining to the non-establishment clause and religious freedom, are foreign to Islamic tradition.63

Islamic faith has two principal legal pillars: (1) the Qur’an, and (2) the Sunna. The Qur’an contains the commandments of Allah, while the Sunna pertains to prophetic traditions. The two principal legal pillars are the foundations of the norms, rules of conduct, and regulations comprising the Shari’a.64 Philippine Muslim jurists Amer M. Bara-acal and Abdulmajid J. Astih explain that “[t]hese inspired laws were sufficiently expounded by early Muslim legists to cover every social phenomenon, and all that lies ahead is for modern men to codify and implement deduced jural rules in their respective environment.”65

With respect to laws governing personal status, political units adhering to the Islamic faith have historically established statutes that are grounded on the Shari’a and the two principal legal pillars.66 In the Philippine context, “the state ‘communalizes’ [Islamic] religion by according its authorities and institutions semi-autonomy from the national legal regime, the latter under the direct control of the state.”67 As such, there are two legal spheres concerning laws governing personal status in the Philippines, “one under the direct control of the state, and the other based on religion (and/or custom) and semi-autonomous from the state’s legal authority.”68 The Civil Code and the Family Code are the principal statutes of general application, while the Muslim Code is of special application based on the Shari’a and local customs. Article 3 (Conflict of Provisions) of the Muslim Code enumerates the following rules governing personal status of Muslims:

(1) In case of conflict between any provision of this Code and laws of general application, the former shall prevail.

(2) Should the conflict be between any provision of this Code and special laws or laws of local application, the latter shall be liberally construed in order to carry out the former.

(3) The provisions of this Code shall be applicable only to Muslims and nothing herein shall be construed to operate to the prejudice of a non-Muslim.

B. RELIGIOUS PRINCIPLES OF ISLAMIC MARRIAGE

The institution of marriage is of sacred relevance to Islam.69 Every intendment of the Shari’a is for the protection and cultivation of marital life. Marriage in Islam finds direct scriptural foundation in the Qur’an, which
provides:

And among His signs Is this, that He created For you mates from among Yourselves, that ye may Dwell in tranquility with them, And He has put love And mercy between your (hearts): Verily in that are signs For those who reflect.70

The significance of marriage in Islam does not solely rest on the existence of the aforesaid verse in the Qur’an, but is more importantly strengthened by the recognized spiritual and practical benefits of the sacred institution.

The prophetic traditions of Islam, which inform the legal structure of Islamic marriage, recognize the invaluable role of marriage in the development of religious life. According to these traditions, an individual who chooses to enter marital life “completes half of his religion,” and dutifully follows the way of life of the Prophet Muhammad.71

In addition, Islam recognizes the institution of marriage as a means of attaining peace in society through the curtailment of fornication, adultery, and all other forms of sexual perversion.72 Islam strictly discourages celibacy and enjoins individuals in faith to follow the consecrated teachings of the Prophet Muhammad:

There is no monkery in Islam . . . I am the one who fears Allah the most among you, yet I fast and break it, I pray and then sleep, and I marry women. He who turns away from my practice is not of us. 73

Marriage in Islam serves as a viable institution to express the sexual desires of an individual, and the Islamic Faith rejects the notion of leading a life of celibacy in order to realize spiritual life and spurn the pursuits of the human flesh.74 In other words, the Islamic faith recognizes the inherent biological needs of an individual and incorporates such reality in the spiritual life. This has been expressly ordained by the Qur’an:

O ye believe. Forbid not the Good things which Allah hath Made lawful for you and Transgress not. Lo’ Allah
Loveth not transgressors.75

Furthermore, Islam accords an important societal role on marriage and recognizes the benefits of this institution to family and society. With respect to the family, Islam acknowledges the critical role of marriage as a catalyst for strengthening the basic unit of society. Marital life is at the heart of a Muslim family, and nurturing marital bonds significantly contributes to the quality of family life.76 More importantly, Islam views marriage as the foundation of society, ensuring societal development by nurturing the core of the basic unit of society.77

The importance of the institution of marriage in the spiritual framework of the Islamic faith thus reveals a common ideological thread with the 1987 Philippine Constitution and the Family Code. Section 2, Article XV of the 1987 Philippine Constitution states that “[m]arriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.”78 Article 1 of the Family Code provides:

Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code. (emphases supplied)

C. MARRIAGE UNDER THE MUSLIM CODE

Within the context of Islamic Law in the Philippines, marriage is regarded as a civil contract and a social institution.79 Its nature, consequences, and incidents are governed by the Muslim Code and the Shari’a, except that marriage settlements may regulate the property relations of the spouses.80

The Muslim Code enumerates four essential requisites of marriage, namely:

(a) legal capacity of the contracting parties;
(b) mutual consent of the parties freely given;
(c) offer (ijab) and acceptance (gabul) duly witnessed by at least two competent persons after the proper guardian in marriage (wali) has given his consent; and
(d) stipulation of customary dower (mahr) duly witnessed by two competent persons.81

Although a valid marriage under the Muslim Code gives rise to several rights and obligations between spouses,82 there are other recognized effects that are distinct from that of the traditional civil law conception on the effects of a valid marriage. Among those listed in the Fatawa Alamgiri are the following effects of a valid Muslim marriage:

(1) subjection of the wife to the power of restraint of the husband within reasonable bounds;

(2) legalization of sexual intercourse;

(3) imposition of the wife’s submission to the husband when summoned to the couch;

(4) the grant of the power of correction to the husband in the event that the wife is disobedient or rebellious; and

(5) creation of the right to just treatment and equal companionship among wives.83

D. SUBSEQUENT MARRIAGE UNDER THE MUSLIM CODE

There are definite bounds that circumscribe the issue of subsequent marriage under Islamic Law in the Philippines. The Muslim Code outlines three instances where an individual is legally permitted to contract a subsequent marriage.

The first instance pertains to a subsequent marriage contracted by a husband. Under the Code, it is permissible for a husband to have as many wives as he wishes, subject to strict conditions.84 The first condition refers to the allowable number of wives at a given time, the limit being not more than four wives at a time.85 In addition, a husband is only permitted to contract a subsequent marriage if it can be established that he has the capacity to “deal with them with equal companionship and just treatment.”86 The Qur’an, which expressly sanctions this type of marriage subject to the aforesaid conditions, states:

If ye fear that ye shall not
Be able to deal justly
With the orphans,
Marry women of your choice,
Two, or three, or four;
But if ye fear that ye shall not
Be able to deal justly (with them),
Then only one, or (a captive)
That your right hands possess.
That will be most suitable,
To prevent you
From doing injustice.87

A subsequent marriage contracted by a widow is the second instance where a subsequent marriage is permitted under the Muslim Code. A widow may lawfully contract a subsequent marriage, provided she has complied with the requisite ‘idda or waiting period. The statute provides for a waiting period of four (4) months and ten (10) days, to be counted from the date of the death of the husband, before the widow may contract a subsequent marriage.88

However, the ‘idda is modified with respect to a pregnant widow, and the subsequent marriage should only be contracted within a reasonable time after the delivery of the child.89

The final instance where a subsequent marriage is legally permitted is by means of prior divorce. Generally, an individual whose previous marriage has been dissolved by means of divorce is allowed to contract a subsequent marriage. Women, however, are required to observe an ‘idda of three monthly courses from the date of divorce.90 In the event that the woman is pregnant at the time of the divorce, she may only contract a subsequent marriage after the delivery of the child.91 The Muslim Code further provides that the woman is not required to observe the ‘idda if it has been indisputably established that the previous marriage has not been consummated at the time of the divorce.92

E. DISSOLUTION OF MARRIAGE THROUGH DIVORCE UNDER THE MUSLIM CODE

Divorce is a valid and legal means of extinguishing marital ties under Islamic Law. Article 45 of the Muslim Code defines divorce as “the formal dissolution of the marriage bond.” There are seven (7) modes of effecting divorce under the Code, namely:

(a) Talaq, or repudiation of the wife by the husband;
(b) Ila, or vow of abstinence by the husband;
(c) Zihar, or injurious assimilation of the wife by the husband;
(d) Li’an, or acts of imprecation;
(e) Khul’, or redemption by the wife;
(f) Tafwid, or exercise by the wife of the delegated right to repudiate; or
(g) Faskh, or judicial decree.93

In contrast with the Family Code, which does not recognize divorce as a valid means of dissolving marital bonds, Islamic Law acknowledges the necessity of divorce as a “safety valve in cases where the spouses can no longer live harmoniously, and when the very purpose of marriage would be defeated if they remained together.”94

F. MIXED MARRIAGES

Generally, marriage must be between Muslims. Islamic Law, however, accommodates differences in religious beliefs provided the male spouse is Muslim. A Muslim male may validly contract marriage with a non-Muslim woman, provided the latter belongs to a “revealed religion” or “People of the Book,” such as Jews or Christians.95 On the other hand, a Muslim woman may only contract marriage with a Muslim male.96

In the event that a Muslim woman desires to contract marriage with a non-Muslim male, the latter must first convert to Islamic faith before solemnizing the marriage bond.97 It is critical to underscore, however, that the purpose of conversion by the non-Muslim male must be his utmost aspiration “to submit himself to the will of Allah” and not “his love for and desire to marry the Muslim woman.”98

G. THE MISCONCEPTION ON PLURALITY OF WIVES AND DIVORCE IN ISLAM

Non-Muslims have viewed the practices of contracting subsequent marriages and severing marital ties by means of divorce as being specifically encouraged by Islamic Law.99 However, a careful scrutiny of Islamic Law would reveal a regime of tolerance for these practices, and at once uncovers a religious and legal framework that aims to contain such practices within reasonable bounds.

With regard to subsequent marriages, particularly the practice of maintaining several wives, Islamic Law simply permits Muslim males to have more than one wife, but does not in any way promote such practice. Islamic Law seeks to advance a culture of monogamy, and in fact proscribes Muslim women from having more than one husband.100 Polygamy has always been the exception in Islam, and exacting restrictions and safeguards have been imposed to curb its objectionable effects and consequences.101 Under the Muslim Code, a Muslim male can have more than one wife only if “he can deal with them with equal companionship and just treatment as enjoined by Islamic law and only in exceptional cases.”102

Furthermore, Article 162 of the Muslim Code expressly provides the following strict requirements for a subsequent marriage to be validly effected:

Any Muslim husband desiring to contract a subsequent marriage shall, before so doing, file a written notice thereof with the Clerk of Court of the Shari’a Circuit Court of the place where his family resides. Upon receipt of said notice, the Clerk shall serve a copy thereof to the wife or wives. Should any of them object, the Agama Arbitration Council shall be constituted in accordance with the provisions of paragraph (2) of the preceding article. If the Agama Arbitration Council fails to obtain the wife’s consent to the proposed marriage, the Court shall subject to Article 27, decide whether or not to sustain her objection.

In effect, therefore, the consent of the wife or wives is a requirement in order for the Muslim male to contract a subsequent marriage.103 The process of arbitration is resorted to in the event of an objection, and the Shari’a Circuit Court shall rule on the objection if the Agama Arbitration Council is not able to obtain the consent of the objecting wife or wives.

With respect to divorce, Islam has continually regarded such as a remedy of last resort.104 Divorce has been accommodated in Islamic Law in order to address the undesirable circumstance of maintaining marital ties despite the unspeakable sufferings endured because of the relationship. The Muslim Code also imposes strict requirements for divorce to be validly effected. First, divorce may only be granted once every avenue for resolving the conflict between the spouses has been explored.105 Moreover, the following procedure must be complied with in order to effect a valid divorce:

(1) Any Muslim male who has pronounced a talaq shall, without delay, file with the Clerk of Court of the Shari’a Circuit Court of the place where his family resides a written notice of such fact and the circumstances attended thereto, after having served a copy thereof to the wife concerned. The talaq pronounced shall not become irrevocable until after the expiration of the prescribed ‘idda.

(2) Within seven days from receipt of notice, the Clerk of Court shall require each of the parties to nominate a representative. The representatives shall be appointed by the Court to constitute, together with the Clerk of Court as chairman, an Agama Arbitration Council. The Agama Arbitration Council shall submit to the Court a report on the result of the arbitration, on the basis of which and such other evidence as may be allowed, the Court shall issue the corresponding order.106

In addition, Article 183 of the Muslim Code provides for penal sanctions in the event of any violation of the statutory procedures to effect a valid divorce.107

IV. LEGAL TENSIONS GENERATED BY CONTEMPORARY PRACTICE

The contemporary practice generates legal tensions between two constitutional values, religious freedom and the institution of marriage. These values are of the highest order in the Philippine legal sphere. Constitutional, statutory, and jurisprudential protections have been extensively accorded to protect their preferred status.108

The contemporary practice places these two constitutional values at odds. It capitalizes on the protective mantle of the free exercise clause to achieve its two overriding objectives: (1) to possess the capacity to remarry without any legal impediment and liability, and (2) to contract another marriage that is legally recognized. The contemporary practice fundamentally relies on the preferred status of the freedom of religion, and its claim of exemption from statutory regulation rests on the classification of conversion and marriage as valid exercises of religious belief.109

In the process, however, the contemporary practice places a serious strain on the natural bonds established through marriage.110 The contemporary practice leaves the prior marriage in a state of uncertainty. The lack of consent of the wife forces on her and the family a different legal and social status, that of a first wife and a first family. The wife and children inevitably shoulder the negative effects of the broken bond.111 The wife is inescapably faced with the various emotions and reactions that result from a fractured marital relation, including the feeling of isolation, disappointment, anger, and loneliness.112 The effects of the contemporary practice are expectedly more pronounced with respect to children of the prior marriage.113 The sense of loss is often amplified as children “lose a degree of contact with one of their very few attachment figures.”114 In light of this, marriage as an inviolable social institution is compromised.

A. PREFERRED STATUS OF RELIGIOUS FREEDOM

Freedom of religion is enshrined in the 1987 Philippine Constitution. The fundamental law does not only proscribe statutes that favor a particular religion or place one at a disadvantage, it further forbids laws that prevent the free exercise of religion.115 Section 5, Article III of the 1987 Philippine Constitution states:

No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights. (emphasis supplied)

Religious freedom consists of two integral components, namely the establishment clause and the free exercise clause. The first half of Section 5 embodies the establishment clause, which states that “[n]o law shall be made respecting an establishment of religion.” The establishment clause refers to the impermissibility of State actions that aid or inhibit a particular religion.116 On the other hand, the free exercise clause is expressed in the second part of Section 5, which provides that “[n]o law shall be made . . . prohibiting the free exercise [of religion].” The free exercise clause encompasses the freedom to believe and the freedom to act according to one’s belief.117

In analyzing the legal tensions generated by the contemporary practice, the free exercise clause is of particular importance. The contemporary practice involves conversion and marriage, acts that are in pursuance of a religious belief.118 The practice does not relate to the advancement or suppression of a religious institution, but instead involves the accommodation of religious acts that may otherwise be subject to laws of general application.119 The free exercise clause therefore serves as the protective mantle of the contemporary practice.

The preferred status of the free exercise clause emanates from a specific interpretative approach espoused by the 1987 Philippine Constitution—benevolent neutrality. This approach safeguards “religious realities, tradition and established practice with a flexible reading of the principle.”120 The fundamental thrust of the approach is to extend accommodation to the free exercise of religion whenever warranted.121 In Estrada v. Escritor, the Philippine Supreme Court elucidated on the benevolent neutrality approach in this wise:

By adopting the above constitutional provisions on religion, the Filipinos manifested their adherence to the benevolent neutrality approach in interpreting the religion clauses, an approach that looks further than the secular purposes of government action and examines the effect of these actions on religious exercise. Benevolent neutrality recognizes the religious nature of the Filipino people and the elevating influence of religion in society; at the same time, it acknowledges that government must pursue its secular goals. In pursuing these goals, however, government might adopt laws or actions of general applicability which inadvertently burden religious exercise. Benevolent neutrality gives room for accommodation of these religious exercises as required by the Free Exercise Clause….We here lay down the doctrine that in Philippine jurisdiction, we adopt the benevolent neutrality approach not only because of its merits as discussed above, but more importantly, because our constitutional history and interpretation indubitably show that benevolent neutrality is the launching pad from which the Court should take off in interpreting religion clause cases. The ideal towards which this approach is directed is the protection of religious liberty “not only for a minority, however small – not only for a majority, however large – but for each of us” to the greatest extent possible within flexible constitutional limits.122

In line with this approach, the State is specifically enjoined to respect “the free exercise of the chosen form of religion.”123 It should be noted, however, that the benevolent neutrality approach does not afford blanket accommodation to every claim of free exercise.124 Certain governmental interests are necessarily accorded due consideration.125 However, only an interest of a compelling nature will “permit encroachments upon this liberty.”126 The Philippine Supreme Court, in Victoriano v. Elizalde Rope Workers’ Union,127 stated that “not every conscience can be accommodated by all the laws of the land; but when general laws conflict with scruples of conscience, exemptions ought to be granted unless some ‘compelling state interest’ intervenes.”128

The free exercise clause in Section 5, Article III of the 1987 Philippine Constitution may therefore only be regulated if a compelling state interest exists. In Sherbert v. Verner,129 the United States Supreme Court explained the nature of this interest and stressed that “no showing merely of a rational relationship to some colorable state interest would suffice; in this highly sensitive constitutional area, ‘(o)nly the gravest abuses, endangering paramount interest, give occasion for permissible limitation’.”130

The stance of the Philippine Supreme Court has been to uphold the benevolent neutrality approach, and to extend accommodation within constitutional bounds.131 The preferred status of the free exercise clause finds realization in the judicial process of “carving out an exemption or upholding an exemption to accommodate religious exercise where it is justified.“132

Decisions of the Philippine Supreme Court prior to Estrada v. Escritor demonstrate adherence to the benevolent neutrality approach. In Ebralinag v. Division Superintendent of Schools of Cebu,133 the Philippine Supreme Court ruled in favor of the free exercise of religious belief with respect to the issue of participation in the flag ceremony of public academic institutions. The petitioners in the case were students enrolled in the grade school and high school levels of the public school system in the Province of Cebu. These students, as members of the religious group Jehovah’s Witnesses, refused to salute the Philippine flag, sing the national anthem, and recite the patriotic pledge as mandated by Republic Act No. 1265 and by Department Order No. 8 of the Department of Education, Culture and Sports. The refusal of the students was an exercise of their religious belief, as the Jehovah’s Witnesses regard the acts required by the statute as violative of their duty to worship one God.134 The public school authorities, however, expelled the students for noncompliance with the statutory requirements. In annulling the orders of expulsion, the Philippine Supreme Court expressly recognized the primacy of religious belief and declared that “[r]eligious freedom is a fundamental right which is entitled to the highest priority and the amplest protection among human rights, for it involves the relationship of man to his Creator.”135

The Court accommodated the religious belief of the Jehovah’s Witnesses and carved out an exemption to the requirements of the law. It emphatically pronounced that “[f]orcing a small religious group, through the iron hand of the law, to participate in a ceremony that violates their religious beliefs, will hardly be conducive to love of country or respect for duly constituted authorities.”136

Subsequently, the Philippine Supreme Court had occasion to examine the scope of religious expression in Iglesia Ni Cristo v. Court of Appeals.137 The case involved a television program of the petitioner entitled “Ang Iglesia ni Cristo.” The petitioner Iglesia ni Cristo, a religious organization, submitted videotapes to the Board of Review for Movie and Pictures Television for purposes of classification. The episodes contained in the videotapes were given x-ratings, thus indicating that the episodes were not fit for public consumption.

The Board concluded that the episodes were derogatory and hostile toward other religions, and were therefore statutorily proscribed.138 The Philippine Supreme Court annulled the ratings of the Board, and declared that all forms of prior restraint on religious speech are inconsistent with the 1987 Philippine Constitution.139 Furthermore, the Court impliedly acknowledged the benevolent neutrality approach in holding:

Vis-a-vis religious differences, the State enjoys no banquet of options. Neutrality alone is its fixed and immovable stance. In fine, respondent board cannot squelch the speech of petitioner Iglesia ni Cristo simply because it attacks other religions, even if said religion happens to be the most numerous church in our country . . . . The bedrock of freedom of religion is freedom of thought and it is best served by encouraging the marketplace of dueling ideas.140

B. MARRIAGE AS AN INVIOLABLE SOCIAL INSTITUTION

The 1987 Philippine Constitution unequivocally recognizes marriage “as an inviolable social institution.”141 It further recognizes marriage as “the foundation of the family”142 and the core of the “basic autonomous social institution.”143 It is the constitutional duty of the State to protect marriage and ensure its inviolability.144 According to Justice Jose C. Vitug, “the constitutional mandate on marriage and the family has not been meant to be simply directory in character, nor for mere expediency or convenience, but one that demands a meaningful, not half-hearted, respect.”145

Statutes governing family relations visibly embrace the constitutional framework on marriage. Section 1 of the Family Code states:

Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code. (emphases supplied)

The Muslim Code is likewise aligned with the constitutional framework. Article 14 of the Code provides:

Marriage is not only a civil contract but a social institution. Its nature, consequences and incidents are governed by this Code and the Shari’a and not subject to stipulation, except that the marriage
settlements may to a certain extent fix the property relations of the spouses. (emphases supplied)

The Philippine Supreme Court has firmly adhered to the constitutional framework on marriage with respect to cases involving Article 36 of the Family Code on the nullity of marriage based on psychological incapacity. In line with the principle of inviolability, the Court has generally resolved doubts in favor of the validity of marriage.146

In Santos v. Court of Appeals and Bedia-Santos,147 the petitioner Leouel Santos sought a declaration of absolute nullity on the ground of psychological incapacity of his wife Julia. The petitioner asserted that the failure of his wife to return to the conjugal home and to maintain correspondence during her five year absence evinced the incapacity of his wife to fulfill the essential obligations of marriage. The Court commenced the resolution of the issue by stating that “[m]arriage is not just an adventure but a lifetime commitment.”148 The Court ultimately denied the petition in the following manner:

The factual settings in the case at bench, in no measure at all, can come close to the standards required to decree a nullity of marriage. Undeniably and understandably, Leouel stands aggrieved, even desperate, in his present situation. Regrettably, neither law nor society itself can always provide all the specific answers to every
individual problem.149

In Republic v. Court of Appeals and Molina,150 the Philippine Supreme Court granted the petition of the Solicitor General to declare the marriage of Roridel Olaviano Molina and Reynaldo Molina as valid and subsisting. The respondent Roridel Olaviano Molina filed a petition for the declaration of nullity on the basis of psychological incapacity of her husband Reynaldo. The Court ruled that the evidence failed to prove the existence of psychological incapacity, and that the difficulty experienced by the spouses was due to conflicting personalities.151 The Court recognized the constitutional framework thus:

Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. Thus, our Constitution devotes an entire Article on the Family, recognizing it “as the foundation of the nation.” It decrees marriage as legally “inviolable,” thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are to be “protected” by the state.152

The Philippine Supreme Court further upheld the constitutional framework on marriage in Marcos v. Marcos.153 The petitioner Brenda Marcos sought to declare her marriage void on the ground of psychological incapacity of respondent Wilson Marcos. She averred that her husband did not provide financial support and had abandoned his family. She further claimed that her family suffered physical abuses in the hands of the respondent. The Court acknowledged the factual assertions of the petitioner as against her husband, but proclaimed that “the totality of his acts does not lead to a conclusion of psychological incapacity on his part.”154

C. ACCOMMODATION OF RELIGIOUS BELIEF VIS-À-VIS MARRIAGE

The Philippine Supreme Court has ruled on two cases that directly involved the constitutional values of religious freedom and marriage, namely Sulu Islamic Association of Masjid Lambayong v. Malik155 (hereinafter “Malik”) and Estrada v. Escritor.156 The first case involved permissive accommodation,157 wherein the Court upheld a statutory exemption that accommodated religious exercise of a Muslim. In the second case the Court extended mandatory accommodation,158 and accordingly carved out an exemption for religious exercise of a member of Jehovah’s Witnesses.

1. Marriage and Morality

In the aforesaid cases, the respondents were charged with immorality by maintaining illicit relations. In Malik, the respondent contracted a subsequent marriage during the subsistence of a prior marriage.159 In Estrada v. Escritor, the respondent maintained a relationship with a male that had a subsisting marriage.160

At first glance, the governmental interest weighed against religious freedom is morality. However, considering the nature of the immoral acts involved in the two cases, it becomes evident that marriage is at the heart of the issue of morality. The charges of immorality rest on the inviolability of marriage. In his separate opinion in Estrada v. Escritor, Justice Vitug elucidated on marriage and morality in this wise:

Marriage is one area where law and morality closely intersect. The act of respondent Escritor of cohabiting with Quilapio, a married man, can only be called “immoral” in the sense that it defies and transgresses the institution of marriage. Society having a deep interest in the preservation of marriage, adultery is a matter of public, not merely private, concern, that cannot readily be ignored. This deep-seated interest is apparent in our Civil Code so replete with rules as in defining the parties’ legal capacity to marry, in laying down the essential requisites of the union, in regulating the rights and duties of the spouses, even their property relations, and in protecting the rights of children.161

In Malik, the Court discussed the charge of immorality in light of the permissibility of polygamous marriages in Islam.162 In Estrada v. Escritor, the Court explicitly recognized the governmental interest of protecting the basic social institutions of marriage and family.163 In this light, the paramount considerations in the two cases are the constitutional values of religious freedom and the institution of marriage.

2. Sulu Islamic Association of Masjid Lambayong v. Malik

The free exercise of religious belief was upheld in Malik. The Philippine Supreme Court recognized a legislative exemption for the crime of bigamy on the basis of religious freedom. The respondent Nabdar Malik, a judge in the Municipal Trial Court of Jolo, was charged with immorality for contracting a second marriage during the subsistence of a prior marriage. The respondent belonged to the tribal group Tausug and adhered to the Islamic faith. In dismissing the charge of immorality, the Court upheld the statutory accommodation of polygamous marriages in Islam. It recognized the exemption provided under Article 180 of the Muslim Code. The Court stated:

Mrs. Marina Malik consented to her husband’s wish to contract, a second marriage because he does not neglect to support her children. Three of them are in college. She has no ill-feelings against Malik’s second wife, who married her husband under Muslim law. Since Art. 180 of P.D. No. 1083, otherwise known as the Code of Muslim Personal laws of the Philippines, provides that the penal laws relative to the crime of bigamy “shall not apply to a person married . . . under Muslim Law,” it is not “immoral” by Muslim standards for Judge Malik to marry a second time while his first marriage exists. 164

3. Estrada v. Escritor

In Estrada v. Escritor, the Philippine Supreme Court carved out an exemption to accommodate the free exercise of religious belief. The respondent Soledad Escritor, a court interpreter in the Regional Trial Court of Las Piñas City, was administratively charged with immorality for maintaining a relationship with a male who had a subsisting marriage. In response to the administrative complaint, the respondent openly admitted “that she has been living with Luciano Quilapio, Jr. without the benefit of marriage for twenty years and that they have a son.”165 However, the respondent put forth a claim of exemption based on religious freedom. She averred that the relationship was in conformity with the precepts of the religious group Jehovah’s Witnesses, of which she and her male partner were members in good standing. By the tenth year of their relationship, the respondent and her male partner both executed a public Declaration of Pledging Faithfulness. This pertains to a religious document wherein the declarant accepts his or her partner in marital relationship, and acknowledges the union as a “binding tie before ‘Jehovah’ God and before all persons to be held to and honored in full accord with the principles of God’s Word.”166 The Declaration of Pledging Faithfulness provides religious recognition of a relationship that suffers from a legal impediment due to the subsistence of a prior marriage.167 The Jehovah’s Witnesses sanctions and validates such relationships, provided the spouse from the prior subsisting marriage has committed adultery. It is the religious belief of the group that the commission of adultery by the spouse from the prior subsisting marriage enables the offended spouse who is a member of the group to enter into another relationship.168

After evaluating the report of the investigating judge, the Office of the Court Administrator found the claim of religious exercise unacceptable. It recommended to the Supreme Court the suspension of the respondent on the ground of immorality, with a concomitant warning that “a repetition of a similar act will be dealt with more severely in accordance with the Civil Service Rules.”169

The Court, however, denied the recommendation of the Office of the Court Administrator. The Court observed:

The Jehovah’s congregation requires that at the time the declarations are executed, the couple cannot secure the civil authorities’ approval of the marital relationship because of legal impediments. It is thus standard practice of the congregation to check the couple’s marital status before giving imprimatur to the conjugal arrangement. The execution of the declaration finds scriptural basis in Matthew 5:32 that when the spouse commits adultery, the offended spouse can remarry. The marital status of the declarants and their respective spouses’ commission of adultery are investigated before the declarations are executed.170 (emphasis supplied)

The Court confirmed the compliance of the respondent and her male partner with their religious group’s requirements and procedures for the execution of the Declaration of Pledging Faithfulness, as attested to by a presiding minister of the religious group.171 Within the realm of religious belief of the Jehovah’s Witnesses, the relationship of the respondent Soledad Escritor and her male partner Luciano Quilapio, Jr. was not immoral.172

In dealing with the issue of granting an exemption based on the free exercise clause, the Court employed the compelling state interest test from a benevolent neutrality approach. The test consists of three stages:

First: Has the statute or government action created a burden on the free exercise of religion?

Second: Is there a sufficiently compelling interest to justify this infringement of religious liberty?

Third: Has the state in achieving its legitimate purposes used the least intrusive means possible so that the free exercise is not infringed any more than necessary to achieve the legitimate goal of the state.173

As regards the first stage, the Court found that the respondent’s religious freedom was indeed burdened. She was left with two conflicting and diametrical choices – her employment or her family and religious belief.174 The Court further noted that the respondent hurdled the requirement of sincerity of religious belief necessary for the first stage of the test. The Court stated:

She did not secure the Declaration only after entering the judiciary where the moral standards are strict and defined, much less only after an administrative case for immorality was filed against her . . . . Ministers from her congregation testified on the authenticity of the Jehovah’s Witnesses’ practice of securing a Declaration and their doctrinal or scriptural basis for such a practice. As the ministers testified, the Declaration is not whimsically issued to avoid legal punishment for illicit conduct but to make the “union” of their members under respondent’s circumstances “honorable before God and men.” . . . Respondent’s request for exemption from the flag ceremony shows her sincerity in practicing the Jehovah’s Witnesses’ beliefs and not using them merely to escape punishment. She is a practicing member of the Jehovah’s Witnesses and the Jehovah ministers testified that she is a member in good standing. 175

With respect to the second stage, the government failed to prove the existence of a compelling state interest that would warrant regulation of the respondent’s religious belief. The Solicitor General claimed that the State has a compelling and overriding interest to preserve the inviolability of marriage and family.176 Furthermore, the Solicitor General contended that the Declaration of Pledging Faithfulness undermined the basic social institution, and is therefore at variance with the constitutional framework on marriage.177 The Court, however, concluded that the evidence presented by the Solicitor General failed to demonstrate an interest of a compelling nature. The Court stressed that “the government must do more than assert the objectives at risk if exemption is given; it must precisely show how and to what extent those objectives will be undermined if exemptions are granted.”178

With regard to the third and final stage, the Court stated that the government did not demonstrate that the means utilized to achieve its legitimate interests was the least intrusive.179 In light of the compelling state interest test, the Court carved out an exemption to accommodate the religious belief of respondent Soledad Escritor.

V. ADDRESSING THE LEGAL TENSIONS GENERATED BY THE CONTEMPORARY PRACTICE

The contemporary practice has seemingly mounted an impregnable wall grounded on the claim of religious freedom to prevent governmental regulation of the subsequent marriage, thereby circumventing the provision of the Family Code governing void marriages and the provision of the Revised Penal Code on the crime of bigamy. The contemporary practice capitalizes on the two kinds of accommodation recognized by the Philippine Supreme Court:

(1) permissive accommodation in Malik, and (2) mandatory accommodation in Estrada v. Escritor. In Malik, the Court upheld the legislative accommodation under the Muslim Code with respect to subsequent marriages. In Estrada v. Escritor, the Court carved out an exemption to accommodate relationships that would otherwise be subject to regulation were it not for a claim of religious freedom.

However, it is imperative to resolve the legal tensions generated by the contemporary practice. At its core, the contemporary practice is an affront to religious freedom, Islam and the institution of marriage. The interviews reveal
the absence of a bona fide intention to convert to Islamic faith. Conversion is simply utilized as a convenient means to achieve the overriding objectives of the contemporary practice, as conversion is the operative act that makes the subsequent marriage possible.

The contemporary practice abuses the protective mantle of the free exercise clause. Religion is simply employed as tool to attain the two overriding objectives of the contemporary practice, that is to possess the capacity to remarry without any legal impediment and liability, and to contract another marriage that is legally recognized. In effect, the contemporary practice perpetuates a culture of invoking religion “as a cheap excuse for every conceivable form of self indulgence.”180 Furthermore, the contemporary practice is an affront to Islam, the very means used to achieve its objectives. It is important to underscore that conversion to Islamic faith must be based on the utmost aspiration “to submit himself to the will of Allah” and not “his love for and desire to marry.”181 Most importantly, the contemporary practice undermines the institution of marriage. The contemporary practice does not provide a genuine sense of closure within legal bounds. The prior marriage is thrust into a state of uncertainty, as the lack of consent of the wife forces on her and on the family a different legal and social status, that of a first wife and a first family.

The legal tensions must be resolved to address these abuses. The permissive and mandatory accommodations recognized by the Philippine Supreme Court must be reassessed to regulate the subsequent marriage contracted through the contemporary practice.

A. DENYING PERMISSIVE ACCOMMODATION

Article 27 of the Muslim Code expressly recognizes the permissibility of polygamy in Islam. Furthermore, Article 180 of the Muslim Code explicitly provides an exemption to the application of the penal provision on bigamy with respect to marriages contracted “in accordance with the provisions of [the Muslim Code] or, before its effectivity, under Muslim law.” The Philippine Supreme Court in Malik upheld this permissive accommodation.182

However, a subsequent marriage under Article 27 is subject to the strict conditions provided in Article 162 of the Muslim Code. Recall the following requirements provided under Article 162:

Any Muslim husband desiring to contract a subsequent marriage shall, before so doing, file a written notice thereof with the Clerk of Court of the Shari’a Circuit Court of the place where his family resides. Upon receipt of said notice, the Clerk shall serve a copy thereof to the wife or wives. Should any of them object, the Agama Arbitration Council shall be constituted in accordance with the provisions of paragraph (2) of the preceding article. If the Agama Arbitration Council fails to obtain the wife’s consent to the proposed marriage, the Court shall subject to Article 27, decide whether or not to sustain her objection. (emphasis supplied)

In light of this, the consent of the wife or wives is a requirement in order for the Muslim male to contract a subsequent marriage.183 Arbitration is resorted to in the event of an objection, failing which the Shari’a Circuit Court will decide the matter. In other words, the consent of the wife, or the permission of the Shari’a Circuit Court if the wife refuses to give consent, is a condition sine quo non with respect to the subsequent marriage.184 In point of fact, the Philippine Supreme Court in Malik acknowledged the consent of the first wife with respect to the subsequent marriage of respondent Nabdar Malik.185

Absent such prior consent or permission, the exemption provided in Article 180 of the Muslim Code will not be applicable. The statutory exemption applies only to subsequent marriages contracted “in accordance with the provisions of [the Muslim Code] or, before its effectivity, under Muslim law.” A subsequent marriage contracted without the prior consent or permission will be subject to the penal provision on bigamy.186

The contemporary practice patently violates the requirement under Article 162 of the Muslim Code. The interviews with Arnulfo and Bernardo show that the subsequent marriage in the contemporary practice is contracted without the knowledge and consent of the wife from the prior subsisting marriage. The lack of knowledge of the wife from the prior subsisting marriage does not only deprive her of the opportunity to consent or object, but also prevents the Shari’a Circuit Court from ruling on any objection. The subsequent marriage therefore fails to satisfy the requirement of prior consent or permission under Article 162. It is subject to the penal provision on bigamy for it is not contracted “in accordance with the provisions of [the Muslim Code] or, before its effectivity, under Muslim law.” Thus, the permissive accommodation upheld by the Philippine Supreme Court in Malik does not extend to the contemporary practice.

B. DENYING MANDATORY ACCOMMODATION

The Philippine Supreme Court in Estrada v. Escritor extended mandatory accommodation based on a claim of free exercise of religious belief. Mandatory accommodation should not be extended in favor of the contemporary practice. In this particular context, regulating the subsequent marriage through Article 35 (4) of the Family Code187 and Article 349 of the Revised Penal Code188 hurdles the three stages of the compelling state interest test.

1. First Stage: Burden on Religious Freedom

The first stage of the compelling state interest test involves determining whether or not the governmental action has placed a burden on religious freedom.189 The inquiry involves an evaluation of the sincerity of the religious belief and the centrality of such religious belief.190 The contemporary practice fails to satisfy these two elements.191

a. Sincerity of Religious Belief

An inquiry on sincerity is imperative “in order to avoid the mere claim of religious belief to escape mandatory regulation.”192 In evaluating sincerity of religious belief, “individual conscience should count for more than personal convenience.”193 In Estrada v. Escritor, the Philippine Supreme Court discussed two cases to illustrate an inquiry on sincerity of religious belief. In Wisconsin v. Yoder, the consistent protestation of the Amish community with respect to the enrollment of children in the public high school system was viewed as evidence of sincerity.194 In Dobkin v. District of Columbia, a male did not appear in court on a Saturday based on a claim that it was against his religious belief as a Sabbatarian.195 The claim was denied upon evidence that he habitually engaged in business on Saturday.196 The Philippine Supreme Court also evaluated the sincerity of belief of respondent Escritor, as evidenced by the Declaration of Pledging Faithfulness and the request for exemption from flag ceremony.197

The interviews with Arnulfo and Bernardo reveal an absence of sincerity of religious belief in the contemporary practice. Despite his conversion to Islamic faith and subsequent marriage under Muslim Law, Arnulfo continuous to adhere to the Catholic faith.198 He regularly hears Sunday masses with Marissa, and observes Catholic traditions such as Advent and Holy Week.199 Similarly, Bernardo continuous to uphold the Catholic faith. He has also raised his child with Nita according to Catholic traditions.200 These acts reveal the absence of a bona fide intention to convert to Islamic faith and are clear indications of the lack of sincerity of religious belief in the contemporary practice.

b. Centrality of Religious Belief

An inquiry on the centrality of religious belief determines whether or not a practice is “core of the belief” or merely “peripheral and incidental.”201 The Philippine Supreme Court in Estrada v. Escritor discussed two cases involving inquiries on centrality of religious belief. In Wisconsin v. Yoder, the constant opposition of the Amish community regarding public high school education was “central to their way of life and faith.”202 In Sherbert v. Verner, the Seventh Day Adventists’ proscribed any form of labor on Saturdays.203 An exemption from work on Saturdays was granted on the basis that the belief was a “cardinal principle.”204

With respect to the contemporary practice, the interviews show that polygamy is not central to the belief of the males converting to Islam. The subsequent marriage in the contemporary practice is contracted for reasons other than the pursuit of religious belief. Furthermore, polygamy is not central to Islamic faith.205 Monogamy has always been the general rule, and polygamy has been the exception.206 Strict limitations have been statutorily imposed to curtail the negative effects and consequences of polygamy, as provided under Articles 27 and 162 of the Muslim Code.207

2. Second Stage: Compelling State Interest

The second stage involves the determination of a sufficiently compelling state interest that would warrant an intrusion in the free exercise of religious belief. A balancing of interests is carried out in the second stage of the test, wherein the governmental interest is weighed against religious freedom.208 It is critical to underscore that the process of balancing interests is contextual, whereby the compelling nature of the interest is evaluated “under the particular set of facts.”209

With regard to the contemporary practice, the governmental interest is evidently the protection of marriage as an inviolable social institution. In Estrada v. Escritor, the Philippine Supreme Court has expressly recognized the legitimacy of this particular governmental interest.210 The Court ruled therein that “in this particular case and under these distinct circumstances,” the government failed to demonstrate the compelling nature of the interest relative to religious freedom.211

It should be noted, however, that the resolution of the Court in Estrada v. Escritor was within the context of a particular set of facts. The sincerity of respondent Soledad Escritor’s religious belief was clearly established in the case, thus warranting an exemption to accommodate the free exercise of religious belief.212 In contrast, it has been shown that there is an absence of sincerity of belief in the contemporary practice. Islam is merely used as a tool of convenience to achieve the overriding objectives of the contemporary practice, that is to possess the capacity to remarry without any legal impediment and liability, and to contract another marriage that is legally recognized. It has also been established that there is an absence of centrality of belief in the contemporary practice, as polygamy is not central to the belief of the males converting to Islam. In addition, polygamy is not central to Islamic
faith.213

The institution of marriage is gravely compromised in light of the absence of sincerity and centrality of belief. The State has an overwhelming interest in protecting the inviolable institution of marriage against any self-serving assertion of religious freedom.214 In the context of the contemporary practice, the governmental interest of protecting the inviolable institution of marriage is of a compelling and paramount nature.

3. Third Stage: Least Intrusive Means

The third and final stage of the compelling state interest test evaluates the means by which the government is pursuing its legitimate interests, and determines whether or not such means are the least intrusive.

Article 35 (4) of the Family Code and Article 349 of the Revised Penal Code regulate bigamous marriages. However, the statutes do not indiscriminately regulate subsequent marriages contracted in accordance with the Muslim Code or Muslim Law. For the Family Code and the Revised Penal Code to apply to subsequent marriages, a least intrusive means is employed through the strict requirements imposed in Article 162 of the Muslim Code. The Family Code and the Revised Penal Code will only regulate subsequent marriages that do not comply with the requirements in Article 162. As provided in Article 162, the prior consent of the wife, or the permission of the Shari’a Circuit Court if the wife refuses to give consent, is a condition sine q0u non in order to contract a subsequent marriage.215 Without the prior consent or permission, the subsequent marriage is not solemnized in accordance with the Muslim Code or Muslim Law.

It should be recalled that in a marriage where “only the male party is a Muslim and the marriage is solemnized in accordance with Muslim Law or [the Muslim Code],” the provisions of the Muslim Code apply.216 However, the Family Code shall apply to the marriage of a Muslim male and a non-Muslim female if it is not solemnized in accordance with the Muslim Code or with Muslim Law.217 The interviews show that the subsequent marriage in the contemporary practice is contracted without the knowledge and consent of the wife from the prior subsisting marriage. The subsequent marriage in the contemporary practice fails to satisfy the requirements in Article 162 of the Muslim Code. It is thus governed by the Family Code since it is not “solemnized in accordance with Muslim Law or [the Muslim Code].” Pursuant to Article 35 (4) of the Family Code, the subsequent marriage in the contemporary practice is bigamous and void from the beginning.

Furthermore, the exemption from the penal provision on bigamy in Article 180 of the Muslim Code does not apply to the subsequent marriage in the contemporary practice. The subsequent marriage in the contemporary practice is not contracted in accordance with the Muslim Code or Muslim Law. Article 349 of the Revised Penal Code may validly regulate such subsequent marriage.218

VI. CONCLUSION

The contemporary practice generates legal tensions between the constitutional values of religious freedom and the institution of marriage. It capitalizes on the protective mantle of the free exercise clause to achieve its overriding objectives. In the process, marriage as an inviolable social institution is compromised. At its core, however, the contemporary practice is not only an affront to the institution of marriage, but also undermines religious freedom
and Islam.

In addressing these legal tensions, it has been argued that the permissive accommodation and mandatory accommodation upheld by the Philippine Supreme Court do not extend to the contemporary practice. It remains subject to governmental regulation that seeks to protect and preserve the institution of marriage.

Ultimately, understanding the contemporary practice and addressing the legal tensions should bring to light the human aspect of an issue that is at once legal and intimately personal. At the heart of the legal tensions resulting from the contemporary practice are real families. This reality should breathe life into the analysis and the resolution of the legal tensions. The statement of Chief Justice Roberto R. Concepcion illuminates the significance of this reality:

After all, the family epitomizes everything that is dearest to each one of us, and no man can normally be expected to strive for his country and his fellowmen more than what he would strive for his own family. Nothing has a greater and more lasting influence upon one’s moral character and general attitude than his life at home or the
atmosphere prevailing therein. In the word[s] of Pliny: “Home is where the heart is.” Indeed, John Clark has added “Home is home, though it be never so homely.” Hence, the cohesion, the strength and the efficiency of the family, as a unit of society, constitute the key to and the measure of the greatness of a nation. 219

2 BENSAUDI ARABANI, SR., COMMENTARIES ON THE CODE OF MUSLIM PERSONAL LAWS OF THE PHILIPPINES WITH JURISPRUDENCE AND SPECIAL PROCEDURE 425 (2nd ed. 2011), citing Sunan Abu Daud, XIII:3. See also AMER BARA-ACAL & ABDULMAJID ASTIH, MUSLIM LAW ON PERSONAL STATUS IN THE PHILIPPINES 141 (1998).

3 Henry J. Abraham, The Bill of Rights: Reflections on Its Status and Incorporation, in THE FIRST FREEDOM 61-62 (James E. Wood, Jr. ed., 1990).

4 The First Amendment of the United States Constitution is the provenance of the religious freedom guarantee in the 1987 Philippine Constitution. See Estrada v. Escritor, A.M. No. P-02-1651, 408 SCRA 1, 130, Aug. 4, 2003.

5 David Little, The Reformed Tradition and the First Amendment, in THE FIRST FREEDOM 17, 21 (James E. Wood, Jr. ed., 1990), citing James Madison, Memorial and Remonstrance against Religious Assessments (1785).

52 Interview with Arnulfo in Manila, Phil. (Dec. 7, 2009). Arnulfo is not the real name of the interviewee. The interviewee has agreed to the interview on condition of anonymity. Furthermore, as part of the condition, all the other names stated in the summary of the interview are not the real names of the personalities involved.

53 Interview with Bernardo in Quezon City, Phil. (Oct. 27, 2009). Bernardo is not the real name of the interviewee. The interviewee has agreed to the interview on condition of anonymity. Furthermore, as part of the condition, all the other names stated in the summary of the interview are not the real names of the personalities involved.

54 The Revised Penal Code is Act No. 3815 (1930).

55 The Code of Muslim Personal Laws of the Philippines is Pres. Dec. No. 1083 (1977).

56 Family Code, art. 35(4) – “The following marriages shall be void from the beginning: … (4) Those bigamous or polygamous marriages not falling under Article 41; …. ” Family Code, art. 41 – “A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.”

63 Michael Mastura, The Introduction of Muslim Law into the Philippine Legal System, in MUSLIM FILIPINO EXPERIENCE: A COLLECTION OF ESSAYS 199, 203 (1984).

64 SAADUDDIN ALAUYA, SR., QUIZZER IN MUSLIM PERSONAL LAW WITH LEGAL OPINION RENDERED 222 (4th ed. 2007). See also Seema Saifee, Note, Penumbras, Privacy, and the Death of Morals-Based Legislation: Comparing U.S. Constitutional Law with the Inherent Right of Privacy in Islamic Jurisprudence, 27 FORDHAM INT’L L.J. 370, 373-374 (2003).

65 BARA-ACAL & ASTIH, supra note 2, at 5.

66 Macrina Adjerol Morados, Muslim Divorce Law Under P.D. 1083: An Analysis of Its Application to Selected Cases Decided at the Sulu Shari’ah Circuit Courts 11 (2003) (unpublished thesis for M.A. Islamic Studies, University of the Philippines, Diliman, on file with the Institute of Islamic Studies, University of the Philippines, Diliman).

96 Id. See also Kathleen Portuán Miller, The Other Side of the Coin: A Look at Islamic Law as Compared to Anglo-American Law-Do Muslim Women Really Have Fewer Rights than American Women?, 16 N.Y. INT’L L. REV. 65, 79 (2003).

107 MUSLIM CODE, art. 183 – “Offenses relative to subsequent marriage, divorce, and revocation of divorce. – A person who fails to comply with the requirements of Articles 86, 161, and 162 of this Code shall be penalized by arresto mayor or a fine of not less than two hundred pesos but not more than two thousand pesos, or both, in the discretion of the court.”

122 Id. at 167-168. In Estrada v. Escritor, the Philippine Supreme Court acknowledged the developments in United States jurisprudence. It recognized the 1990 ruling of the United States Supreme Court in Employment Division, Department of Human Resources of Oregon v. Smith (494 U.S. 872) wherein the compelling state interest test was rejected. However, the Philippine Supreme Court ruled that “[the] Smith [case] is dangerous precedent because it subordinates fundamental rights of religious belief and practice to all neutral, general legislation.” The Philippine Supreme Court pronounced that “it is the strict scrutiny-compelling state interest test which is most in line with the benevolent neutrality- accommodation approach.” The Philippine Supreme Court stressed that the “benevolent neutrality-accommodation, whether mandatory or permissive, is the spirit, intent and framework underlying the Philippine Constitution.” Estrada v. Escritor, A.M. No. P-02-1651, 492 SCRA 1, 49-66, Jun 22, 2006.

156 The case involved two actions of the Philippine Supreme Court. The first action remanded the administrative complaint to the Office of the Court Administrator in order to give the Solicitor General the opportunity to intervene (Estrada v. Escritor, A.M. No. P-02- 1651, 408 SCRA 1, Aug. 4, 2003). After the intervention of the Solicitor General, the second action resolved the administrative complaint with finality (Estrada v. Escritor, A.M.No. P-02-1651, 492 SCRA 1, Jun. 22, 2006).

Those that have less in life should have more in law to give them a better chance at competing with those that have more in life. Accordingly, in case of doubt, laws should be interpreted to favor the working class – whether in the government or in the private sector – in order to give flesh and vigor to the pro-poor and pro-labor provisions of our Constitution.

Reform and rationalization of the government corporate sector can be considered as one of the flagship projects of the Daang Matuwid (“straight path”) agenda of the current Aquino administration. During his first State-of- the-Nation Address (SONA) in 2010,3 President Benigno Aquino III depicted the government owned and controlled corporations (GOCCs), with specific reference to the Metropolitan Waterworks and Sewerage System (MWSS), as the archetype of corruption in government.

The image painted by President Aquino was that, while the people were lining up to get water in the midst of a water shortage, the members of the Board of Trustees of MWSS were rewarding themselves with bonuses. President Aquino went on to enumerate the various allowances that members of the Board of Trustees of MWSS were receiving: committee meeting per diem, grocery incentive, mid-year bonus, productivity bonus, anniversary bonus, year-end bonus, Christmas bonus, additional Christmas package, and financial assistance. And while all these bonuses already amounted in the millions for Board Members, all these were on top of the technical assistance, loans, vehicles, and houses granted by the MWSS to the members of its Board of Trustees. All these were allocated and given despite the fact that the MWSS has yet to pay the pension of its retired employees.4

With the exposition of President Aquino, it was clear that Boards of Directors/Trustees of GOCCs were giving themselves undeserved bonuses and that such pernicious practice of according extravagant benefits to government corporate officials must be stopped.

However, what was perhaps overlooked by many was that the government corporate sector reform agenda of the Aquino administration was not limited to the level of its Board of Directors/Trustees; it also included the ordinary rank-and-file employees.

In the same 2010 SONA, President Aquino mentioned that in 2009, the total amount paid by MWSS as compensation to its employees was P211.5 million pesos. The President clarified, however, that only 24% of this amount was the actual payroll salary of employees. The other 76% was in the form of additional allowances and benefits. To further simplify his illustration, President Aquino stated that an ordinary employee [in government] receives only 13th month pay plus a cash gift, but in MWSS, employees receive as much as 30 months worth of salary every year with the additional bonuses and allowances that they have been receiving.

This proportion between the salary and additional benefits received by MWSS employees was again highlighted by President Aquino, almost two (2) years after, in the speech that he delivered during the GOCC Governance Day, held on 6 February 2012.

Public attention on the government corporate sector reform agenda of the Aquino Administration has been focused on the projected enhanced efficiency and responsiveness of the corporate entity and the rationalized compensation of its governing board. In the margins, however, is the inevitable collateral effect of this government corporate sector reform agenda on the ordinary rank-and-file employee of GOCCs.

The Aquino Administration, in traversing its “straight path”, might very well find itself stumbling upon the policy on the protection of labor, which is already well-entrenched in the Philippine legal system. This is a nascent legal issue which this paper seeks to explore, and perhaps, resolve.

II. RATIONALIZING THE GOVERNMENT CORPORATE SECTOR

The agenda of reform in the government corporate sector is by no means a novel idea of the current Aquino Administration. The need to rationalize the government corporate sector was recognized by the government as early as 1984,5 when the government could no longer ignore that government corporate sector consumes a large amount of government budgetary resources and substantial domestic and external borrowings.6

Furthermore, the unregulated proliferation of GOCCs was viewed to be one of the major contributing elements to the fiscal imbalance of the economy.

The government policy of rationalizing the government corporate sector thus began even before the adoption of the 1987 Constitution. From the administration of former President Ferdinand Marcos, rationalizing the government corporate sector has been part of the agenda and policy of the administrations that followed.7

During the term of then President Corazon Aquino, the matter of compensation and incentives in the government corporate sector had already been recognized. In 1987, she issued Executive Order No. 2368 which contained a provision on the evaluation of corporate performance and the “granting of incentives as appropriate to well-performing corporations”. To implement this performance incentive, President Corazon Aquino issued Executive Order No. 486,9 which put in place a Performance Evaluation System (PES), and was later amended by Executive Order No. 518.10 The establishment of a performance-based incentive system for GOCCs was intended to encourage efficient performance. The incentives consisted not only of cash rewards and bonuses to deserving GOCC officers and employees,11 but also presidential citations for GOCCs exhibiting outstanding performance.12 These bonuses were to be given “based on an evaluation of individual performance and relative contribution to the attainment of the corporation’s goals and targets” and the maximum allowable amount for such incentive bonus was not to exceed three (3) months the basic salary of the officer or employee.13 Together with the incentive, a disincentive system was established such that “any GOCC that fails to achieve at least a “Satisfactory” performance rating in two (2) consecutive evaluation periods shall [have been] subjected to whatever measures and sanctions by the GCMCC.”14 And among the allowed measures was the immediate replacement of the member(s) of the GOCCs Board of Directors and/or any or all of its key officers.15

However, despite five (5) previous administrations and more than twenty five (25) years of reform initiatives, the government corporate sector remained a problem area that the administration of President Benigno Aquino III had to address when he assumed office in 2010.

A. Dichotomy of GOCCs

Government-owned or controlled corporations are collectively defined as “any agency organized as a stock or non-stock corporation, vested with functions relating to public needs whether governmental or proprietary in nature, and owned by the Government of the Republic of the Philippines directly or through its instrumentalities either wholly or, where applicable as in the case of stock corporations, to the extent of at least majority of its outstanding capital stock.”16 Under R.A. 10149,17 the term “GOCC” includes Government Instrumentalities with Corporate Powers (GICPs)/Government Corporate Entities (GCEs)18 and Government Financial Institutions (GFIs).19

While GOCCs have a unitary definition, the Constitution and the law dichotomizes GOCCs in two ways: (1) on the manner of its creation; and (2) coverage under the Salary Standardization Law (SSL). These dichotomies have a direct impact on the manner by which employees of GOCCs receive compensation and other benefits.

i. Chartered vs. Non-Chartered i.Chartered vs. Non-Chartered

GOCCs can be dichotomized based on the manner of their creation. The first mode by which GOCCs may be created is found in the Constitution, which provides that GOCCs “may be created or established by special charters.”20 GOCCs created in this way are generally called “chartered” GOCCs.21

Consequently, the other class of GOCCs is aptly called “non-chartered” GOCCs because they are “organized and operating under Batas Pambansa Bilang 68, or ‘The Corporation Code of the Philippines’.”22 GOCCs of this class come into being in two ways. First, a GOCC or other instrumentality of government organizes a corporation under the Corporation Code. And second, a GOCC or government agency acquires majority of the shares of stock of an already existing private corporation.

With the 1987 Constitution, the dichotomy on the basis of charter is crucial for the reason that it determines which law governs the GOCC; that is, whether it is covered by civil service laws or the Labor Code.23

Significantly, under the 1935 Constitution a subsidiary of a wholly government-owned corporation and a government corporation with original charter were both covered by the Labor Code.

The situation changed after the ratification of the 1973 Constitution which provided that the “civil service embraces every branch, agency, subdivision and instrumentality of the Government, including every [GOCC]…”24 Effectively, all GOCCs, with or without original/special charter, was subsumed under the civil service. In National Housing Corp. v. Juco,25 the Supreme Court explained the evil that the 1973 Constitution sought to prevent, thus:

The infirmity of the respondents’ position lies in its permitting a circumvention or emasculation of Section 1, Article XII-B of the constitution. It would be possible for a regular ministry of government to create a host of subsidiary corporations under the Corporation Code funded by a willing legislature. A government-owned corporation could create several subsidiary corporations.

These subsidiary corporations would enjoy the best of two worlds. Their officials and employees would be privileged individuals, free from the strict accountability required by the Civil Service Decree and the regulations of the Commission on Audit. Their incomes would not be subject to the competitive restrains of the open market nor to the terms and conditions of civil service employment. Conceivably, all government-owned or controlled corporations could be created, no longer by special charters, but through incorporations under the general law. The Constitutional amendment including such corporations in the embrace of the civil service would cease to have application. Certainly, such a situation cannot be allowed to exist.26

It was under the 1973 Constitution that President Marcos issued Presidential Decree No. 1597,27 which provided that “allowances, honoraria and other fringe benefits which may be granted to government employees… shall be subject to the approval of the President upon recommendation of the Commissioner [now Secretary] of the Budget.”28 The importance of this Executive issuance is that it remains to be cited by the Department of Budget Management (DBM) and other government agencies, and the above mentioned provision remains one of the legal standards by which allowances and other benefits are determined to be “authorized” or not.29

However, when the 1987 Constitution was adopted, it textually limited the coverage of the civil service only to GOCCs “with original charter.”30 Furthermore, under the 1987 Constitution, the power, authority, and duty of the Commission on Audit to examine and audit accounts was also limited to GOCCs with original charters,31 whereas the jurisdiction of the Commission on Audit over GOCCs under the 1973 Constitution made no distinction as to charter.32

The following proceedings in the 1986 Constitutional Commission shed better light on the Constitutional intent and meaning in the use of the phrase “with original charter”, thus:

THE PRESIDING OFFICER (Mr. Trenas) Commissioner Romulo is recognized.

MR. ROMULO. I beg the indulgence of the Committee. I was reading the wrong provision.

I refer to Section 1, subparagraph I which reads:

The Civil Service embraces all branches, subdivisions, instrumentalities, and agencies of the government, including government-owned or controlled corporations.

My query: Is Philippine Airlines covered by this provision?

MR. FOZ. Will the Commissioner please state his previous question?

MR. ROMULO. The phrase on line 4 of Section 1, subparagraph 1, under the Civil Service Commission, says: “including government-owned or controlled corporations.’ Does that include a corporation, like the Philippine Airlines which is government-owned or controlled?

MR. FOZ. I would like to throw a question to the Commissioner. Is the Philippine Airlines controlled by the government in the sense that the majority of stocks are owned by the government?

MR. ROMULO. It is owned by the GSIS. So, this is what we might call a tertiary corporation. The GSIS is owned by the government. Would this be covered because the provision says “including government-owned or controlled corporations.”

MR. FOZ. The Philippine Airlines was established as a private corporation. Later on, the government, through the GSIS, acquired the controlling stocks. Is that not the correct situation?

MR. ROMULO. That is true as Commissioner Ople is about to explain. There was apparently a Supreme Court decision that destroyed that distinction between a government-owned corporation created under the Corporation Law and a government- owned corporation created by its own charter.

MR. FOZ. Yes, we recall the Supreme Court decision in the case of NHA vs. Juco to the effect that all government corporations irrespective of the manner of creation, whether by special charter or by the private Corporation Law, are deemed to be covered by the civil service because of the wide-embracing definition made in this section of the existing 1973 Constitution. But we recall the response to the question of Commissioner Ople that our intendment in this provision is just to give a general description of the civil service. We are not here to make any declaration as to whether employees of government-owned or controlled corporations are barred from the operation of laws, such as the Labor Code of the Philippines.

MR. ROMULO. Yes.

MR. OPLE. May I be recognized, Mr. Presiding Officer, since my name has been mentioned by both sides.

MR. ROMULO. I yield part of my time.

THE PRESIDING OFFICER (Mr.Trenas). Commissioner Ople is recognized.

MR. OPLE. In connection with the coverage of the Civil Service Law in Section 1 (1), may I volunteer some information that may be helpful both to the interpellator and to the Committee. Following the proclamation of martial law on September 21, 1972, this issue of the coverage of the Labor Code of the Philippines and of the Civil Service Law almost immediately arose. I am, in particular, referring to the period following the coming into force and effect of the Constitution of 1973, where the Article on the Civil Service was supposed to take immediate force and effect. In the case of LUZTEVECO, there was a strike at the time. This was a government-controlled and government-owned corporation. I think it was owned by the PNOC with just the minuscule private shares left. So, the Secretary of Justice at that time, Secretary Abad Santos, and myself sat down, and the result of that meeting was an opinion of the Secretary of Justice which became binding immediately on the government that government corporations with original charters, such as the GSIS, were covered by the Civil Service Law and corporations spun off from the GSIS, which we called second generation corporations functioning as private subsidiaries, were covered by the Labor Code. Samples of such second generation corporations were the Philippine Airlines, the Manila Hotel and the Hyatt. And that demarcation worked very well. In fact, all of these companies I have mentioned as examples, except for the Manila Hotel, had collective bargaining agreements. In the Philippine Airlines, there were, in fact, three collective bargaining agreements; one, for the ground people or the PALIA one, for the flight attendants or the PASAC and one for the pilots of the ALPAC How then could a corporation like that be covered by the Civil Service law? But, as the Chairman of the Committee pointed out, the Supreme Court decision in the case of NHA vs. Juco unrobed the whole thing. Accordingly, the Philippine Airlines, the Manila Hotel and the Hyatt are now considered under that decision covered by the Civil Service Law. I also recall that in the emergency meeting of the Cabinet convened for this purpose at the initiative of the Chairman of the Reorganization Commission, Armand Fabella, they agreed to allow the CBA’s to lapse before applying the full force and effect of the Supreme Court decision. So, we were in the awkward situation when the new government took over. I can agree with Commissioner Romulo when he said that this is a problem which I am not exactly sure we should address in the deliberations on the Civil Service Law or whether we should be content with what the Chairman said that Section 1 (1) of the Article on the Civil Service is just a general description of the coverage of the Civil Service and no more.

Thank you, Mr. Presiding Officer.

MR. ROMULO. Mr. Presiding Officer, for the moment, I would be satisfied if the Committee puts on records that it is not their intent by this provision and the phrase “including government-owned or controlled corporations” to cover such companies as the Philippine Airlines.

MR. FOZ. Personally, that is my view. As a matter of fact, when this draft was made, my proposal was really to eliminate, to drop from the provision, the phrase “including government- owned or controlled corporations.”

MR. ROMULO. Would the Committee indicate that is the intent of this provision?

MR. MONSOD. Mr. Presiding Officer, I do not think the Committee can make such a statement in the face of an absolute exclusion of government-owned or controlled corporations. However, this does not preclude the Civil Service Law to prescribe different rules and procedures, including emoluments for employees of proprietary corporations, taking into consideration the nature of their operations. So, it is a general coverage but it does not preclude a distinction of the rules between the two types of enterprises.

MR. FOZ. In other words, it is something that should be left to the legislature to decide. As I said before, this is just a general description and we are not making any declaration whatsoever.

MR. MONSOD. Perhaps if Commissioner Romulo would like a definitive understanding of the coverage and the Gentleman wants to exclude government-owned or controlled corporations like Philippine Airlines, then the recourse is to offer an amendment as to the coverage, if the Commissioner does not accept the explanation that there could be a distinction of the rules, including salaries and emoluments.

MR. ROMULO. So as not to delay the proceedings, I will reserve my right to submit such an amendment.

… … …

THE PRESIDING OFFICE (Mr. Trenas) Commissioner Romulo is recognized.

MR. ROMULO. On page 2, line 5, I suggest the following amendment after “corporations”: Add a comma (,) and the phrase EXCEPT THOSE EXERCISING PROPRIETARY FUNCTIONS.

THE PRESIDING OFFICER (Mr. Trenas). What does the Committee say?

SUSPENSION OF SESSION

MR. MONSOD. May we have a suspension of the session?

THE PRESIDING OFFICER (Mr. Trenas). The session is suspended.

It was 7:16 p.m.

RESUMPTION OF SESSION

At 7:21 p.m., the session was resumed.

THE PRESIDING OFFICER (Mr. Trenas). The session is resumed. Commissioner Romulo is recognized.

MR. ROMULO. Mr. Presiding Officer, I am amending my original proposed amendment to now read as follows: “including government-owned or controlled corporations WITH ORIGINAL CHARTERS.” The purpose of this amendment is to indicate that government corporations such as the GSIS and SSS, which have original charters, fall within the ambit of the civil service. However, corporations which are subsidiaries of these chartered agencies such as the Philippine Airlines, Manila Hotel and Hyatt are excluded from the coverage of the civil service. THE PRESIDING OFFICER (Mr. Trenas). What does the Committee say?

MR. FOZ. Just one question, Mr. Presiding Officer. By the term ”original charters,” what exactly do we mean?

MR. ROMULO. We mean that they were created by law, by an act of Congress, or by special law.

MR. FOZ. And not under the general corporation law.

MR. ROMULO. That is correct. Mr. Presiding Officer.

MR. FOZ. With that understanding and clarification, the Committee accepts the amendment.

MR. NATIVIDAD. Mr. Presiding officer, so those created by the general corporation law are out.

Thus, as it now stands, GOCCs with original charters are covered by civil service laws,34 while non-chartered GOCCs are covered by the Labor Code.35 As such, only employees of chartered GOCCs are part of the civil service, while employees in non-chartered GOCCs are excluded therefrom.36

The effect of this is that employees in GOCCs incorporated under the Corporation Code have the right to bargain collectively, to have collective bargaining agents, collective bargaining agreements, and the right to strike or lockout.37 Employees in GOCCs with special charters, on the other hand, have no right to strike nor to bargain collectively, except where the terms and conditions of employment are not fixed by law.38 The blanket Constitutional right of workers to self-organization, collective bargaining and negotiations,39 however, nonetheless applies to employees of GOCCs with original charters40 and is guided by Executive Order No. 180, Series of 1987.41

ii. SSL-covered vs. SSL-exempt

Under the Article on the Civil Service in the 1987 Constitution, it is mandated that “Congress shall provide for the standardization of compensation of government officials and employees, including those in government-owned or controlled corporations with original charters…”42 Pursuant to this provision of the Constitution, Congress enacted Republic Act No. 6758 (R.A. 6758),43 more popularly known as the Salary Standardization Law (SSL), prescribing a revised compensation and position classification system in the government, “including government-owned or controlled corporations and government financial institutions.”44

Notably, when R.A. 6758 included GOCCs in its coverage,45 it made no distinction as to chartered or non-chartered GOCCs. The dichotomy that R.A. 6758 ostensibly sought to address was on the basis of the functions of the GOCC,46 thus:

…The term “government-owned or controlled corporations and financial institutions” shall include all corporations and financial institutions owned or controlled by the National Government, whether such corporations and financial institutions perform governmental or proprietary functions.47 (emphases supplied)

In 1994, the Senate and the House of Representatives adopted Joint Resolution No. 1, also known as the Salary Standardization Law II (SSL II), urging the President to revise the existing Compensation and Position Classification System in line with the revised compensation and position classification system adopted therein.48 Through Joint Resolution No. 1, “the Senate and House of Representatives have also categorically recognized and acknowledged the authority of the President of the Philippines to revise the existing Compensation and Position Classification System in the government under the standards and guidelines therein provided.”49

In 2009, the Senate and the House of Representatives adopted Joint Resolution No. 4, also known as the Salary Standardization Law III (SSL III), resolving to “authorize the President of the Philippines to modify the existing Compensation and Position Classification System.” Under its Total Compensation Framework, “[t]he existing basic salaries, allowances, benefits and incentives granted to government officials and employees [were] rationalized and standardized… [whereby] the total payment given to an employee for services rendered [were] limited to the following: (i) Basic Salaries, including Step Increments; (ii) Standard Allowances and Benefits;50 (iii) Specific-Purpose Allowances and Benefits;51 and (iv) Incentives.” 52The Joint Resolution also provides that the “coverage, conditions for the grant, including the rates of allowances, benefits and incentives to all government employees, shall be rationalized in accordance with the policies to be issued by the President upon recommendation of the DBM.”53

There is, however, also a dichotomy on the basis of the application of the Salary Standardization Law. For while the standardized compensation enacted by Congress was meant to cover GOCCs with original charters, Congress has also provided exemptions to certain GOCCs. Thus, there are GOCCs with original charters that are SSL-covered, and there are GOCCs with original charters that are SSL-exempt.

The exemption from the SSL is based on a GOCCs claim that the qualifications and jobs performed by its directors, officers and employees are different from those performed by other “government employees”. The exemption grants the Board of Directors/Trustees of the GOCC the authority to fix the salaries, compensations and benefits of its personnel, including the board members themselves. In Central Bank Employees Association v. Bangko Sentral ng Pilipinas,54 the justification for exemption from the coverage of the SSL (at least for GFIs) was framed in this wise:

…But it bears emphasis that, while each GFI has a mandate different and distinct from that of another, the deliberations show that the raison d’être of the SSL-exemption was inextricably linked to and for the most part based on factors common to the eight GFIs, i.e., (1) the pivotal role they play in the economy; (2) the necessity of hiring and retaining qualified and effective personnel to carry out the GFI’s mandate; and (3) the recognition that the compensation package of these GFIs is not competitive, and fall substantially below industry standards.55

Since 1992, Congress has granted twenty eight (28) exemptions from the coverage of the SSL through the charters of the GOCCs.56 The MWSS is in fact one of these SSL-exempt GOCCs. The practical effect of this was that the DBM had difficulty in requiring these SSL-exempt GOCCs to submit their budgets for examination as these GOCCs question the authority of the DBM to look into their budgets on the basis of their exemption from the SSL. The Corporate Operating Budget (COB), which is the budget of a GOCC or GFI, which consists of estimates of revenues, expenditures and borrowings and prepared prior to the beginning of the fiscal year and recommended by the governing board, is submitted for the consideration and final approval of the President through the DBM.57 The exemption from the coverage of the SSL that gave the Board of Directors/Trustees of certain GOCCs the opportunity to grant generous salaries and bonuses, not only to themselves, but also to the rank-and-file employees of the GOCC.58

The mistaken, yet prevailing, notion is that SSL-exempt GOCCs have complete fiscal autonomy to adopt compensation, allowances and benefits packages without need of seeking approval from the Office of the President, especially when the GOCC was not obtaining any subsidies from the National Government. For this purpose, GOCCs use its own corporate funds to adopt and implement its own compensation system. However, as stated earlier, Presidential Decree No. 1597 requires that the approval of the President, upon recommendation from the Secretary of Budget, must first be secured before allowances, honoraria and other fringe benefits may be granted. The Presidential Decree makes no distinction and was intended to apply to all GOCCs. This policy of securing prior Presidential approval, upon recommendation from the DBM, with respect to the grant of allowances and other benefits was re-affirmed by Joint Resolution No. 4 (s.2009), which provides that the “coverage, conditions for the grant, including the rates of allowances, benefits, and incentives to all government employees, shall be rationalized in accordance with the policies to be issued by the President upon recommendation of the DBM.” In other words, whether under the era of the 1973 Constitution or 1987 Constitution, prior approval from the President is necessary.

In 2001, President Gloria Macapagal-Arroyo issued Memorandum Order No. 20, directing the heads of GOCCs, GFIs, and subsidiaries exempted from or not following the Salary Standardization Law to implement pay rationalization in all senior officer positions. This was in response to a study that “revealed a much superior pay package in GOCCs, GFIs and subsidiaries exempted from the SSL, such that officers in these entities receive at least twice what comparable positions receive in NGAs, and some heads of said entities even exceed the average salary of their counterpart positions in the private sector in the Philippines and in the ASEAN Region.”59 The issuance immediately suspended the grant of any salary increases and new or increased benefits,60 and ordered the preparation of a Pay Rationalization Plan for senior officer positions and Members of the Board of Directors/Trustees to reduce their actual pay package.61

In 2010, President Benigno Aquino III also implemented a rationalization of the compensation of GOCCs with the issuance of Executive Order No. 7,62 which imposed a moratorium in the increase in the rates of salaries, and the grant of new increases in the rates of allowances, incentives and other benefits, except salary adjustments in accordance with the implementation of Joint Resolution No. 4, until specifically authorized by the President. The moratorium was imposed to pave the way for the standardization of the compensation and position classification in all GOCCs and GFIs. This was followed by Executive Order No. 24 (s.2011),63 which rationalized the compensation for the members of the Board of Directors/Trustees of GOCCs by imposing limits on their compensation structure based on the classification set by the Executive Order.

B. The GOCC Governance Act of 2011

Barely a year after the 2010 SONA of President Aquino, which highlighted the amount of allowances received by GOCCs such as the MWSS, Republic Act No. 10149, otherwise known as the “GOCC Governance Act”, was enacted by the Legislature.64 The title of R.A. 10149 itself expresses the very purpose for which the law was created:

AN ACT TO PROMOTE FINANCIAL VIABILITY AND FISCAL DISCIPLINE IN GOVERNMENT-OWNED OR –CONTROLLED CORPORATIONS AND TO STRENGTHEN THE ROLE OF THE STATE IN ITS GOVERNANCE AND MANAGEMENT TO MAKE THEM MORE RESPONSIVE TO THE NEEDS OF PUBLIC INTEREST AND FOR OTHER PURPOSES

R.A. 10149 created the “Governance Commission for GOCCs” (GCG), a “central advisory, monitoring, and oversight body with authority to formulate, implement and coordinate policies”65 in the government corporate sector. The GCG is attached to the Office of the President,66 and among its powers and functions is to:

(h) Conduct compensation studies, develop and recommend to the President a competitive compensation and remuneration system which shall attract and retain talent, at the same time allowing the GOCC to be financially sound and sustainable;67

To further operationalize this function of the GCG with respect to the
members of the Board of Directors/Trustees of GOCCs, Section 23 of R.A.10149 mandates the GCG to determine their compensation, per diems,
allowances and incentives, “using as a reference, among others, Executive Order No. 24 dated February 10, 2011.”

In addition, Section 8 of R.A. 10149 mandated the Commission to “develop a Compensation and Position Classification System (CPCS)68which shall apply to all officers and employees of the GOCCs whether under the Salary Standardization Law or exempt therefrom and shall consist of classes of positions grouped into such categories as the GCG may determine, subject to the approval of the President.”69 Through this CPCS, all positions “shall be allocated to their proper position titles and salary grades in accordance with an Index of Occupational Services, Position Titles and Salary Grades of the [CPCS], which shall [also] be prepared by the GCG and approved by the President.” This mandate of the GCG to develop a CPCS applicable to all positions in GOCCs and consisting of classes of positions, is similar to that given to the DBM under R.A. 6758.70

The CPCS to be developed by the GCG is further mandated by R.A. 10149 to be governed by the following principles:

(a) All GOCC personnel shall be paid just and equitable wages in accordance with the principle of equal pay for work of equal value. Differences in pay shall be based on verifiable Compensation and Position Classification factors in due regard to the financial capability of the GOCC;

(b) Basic compensation for all personnel in the GOCC shall generally be comparable with those in the private sector doing comparable work and must be in accordance with prevailing laws on minimum wages. The total compensation provided for GOCC personnel shall be maintained at a reasonable level with due regard to the provisions of existing compensation and position classification laws including Joint Resolution No. 4, Series of 2009, and the GOCCs operating budget; and

(c) A review of the GOCC compensation rates, taking into account the performance of the GOCC, its overall contribution to the national economy and the possible erosion in purchasing power due to inflation and other factors, shall be conducted periodically.

Any law to the contrary notwithstanding, no GOCC shall be exempt from the coverage of the Compensation and Position Classification System developed by the GCG…71

The foregoing principles are again by no means novel, as it is a substantial replication of the principles governing the Compensation and Position Classification System of the Government under R.A. 6758,72 Executive Order No. 7 (s.2010), and Joint Resolution No. 4.73

Furthermore, R.A. 10149 contains a provision with respect to non- diminution of authorized salaries, to wit:

Sec. 11. Non-diminution of Salaries. – The Compensation and Position Classification System to be developed and recommended by the GCG and as approved by the President shall apply to all positions, on full or part-time basis, now existing or hereafter created in the GOCC: Provided, That in no case shall there be any diminution in the authorized salaries as of December 31, 2010 of incumbent employees of GOCCs, including those exempt under Republic Act No. 6758, as amended, upon the implementation of the Compensation and Position Classification System for GOCCs.74

Equally important in this regard is the wording of R.A. 10149 in relation to the definition of a GOCC, to wit:

(o) Government-Owned or –Controlled Corporation (GOCC) refers to any agency organized as a stock or nonstock corporation, vested with functions relating to public needs whether governmental or proprietary in nature, and owned by the Government of the Republic of the Philippines directly or through its instrumentalities either wholly or, where applicable as in the case of stock corporations, to the extent of at least a majority of its outstanding capital stock: Provided, however, That for purposes of this Act, the term “GOCC” shall include GICP/GCE and GFI as defined herein.75 (emphasis supplied)

With the foregoing, it is clear that once the CPCS is in place, the dichotomies that defined GOCCs before will be irrelevant. The CPCS to be developed by the GCG shall apply to all GOCCs; whether chartered or non- chartered, SSL-covered or SSL-exempt, governmental or proprietary. All GOCCs, whether receiving subsidies from the National Government or operate on their own corporate funds generated from operations, are bound to adopt compensations systems that are in conformity with the CPCS for GOCCs, which requires for its effectivity the formal approval of the President of the Philippines. The GCG is further vested with authority to recommend to the President, incentives for certain position titles, giving due consideration to the necessity for such allowances and the good performance of the GOCC.76

The overhaul of the existing laws, rules and jurisprudence pertaining to the CPCS as applied to GOCCs is meant to address the dichotomy in the government bureaucracy as well as in GOCCs, which was formally recognized in Memorandum Order No. 20, Series of 200177 “brought about by the severe pay imbalance between personnel of these special entities and the rest of the bureaucracy following the SSL;”78 and which was also formally recognized by the Aquino Administration in the Philippine Development Plan 2011-2016 (PDP), which serves as the Administration’s guide in formulating policies and implementing development programs.79 Thus one of the key strategies and programs for achieving the overall goal of inclusive growth under the PDP is to further rationalize the compensation framework of the bureaucracy and GOCCs:80

The rationalization of government functions, pay, and personnel shall be continued and extended to cover not only the bureaucracy itself but also government-owned and -controlled corporations (GOCCs) and government financial institutions (GFIs).

i. Jurisdiction of the Civil Service Commission (CSC)

R.A. 10149 brought under the ambit of the GCG both chartered and non-chartered GOCCs, hence the CPCS that the GCG is mandated to develop, as well as other aspects of its powers and functions, also affect employees in the civil service. Notably, Section 22 of R.A. 10149 expressly recognizes the continuing effectivity, if not primacy, of existing civil service laws when it provided that the power of the Board of Directors/Trustees to discipline or remove the CEO is “subject to existing civil service laws, rules and regulations.” Considering that the civil service, which embraces GOCCs with original charters,81 is under the administration of the Civil Service Commission (CSC),82 a discussion of the interplay of the GCG and the CSC becomes necessary.

Unlike the GCG which is a body created by statute, the CSC is an independent body created by the 1987 Constitution and vested with the following powers and functions:

Sec. 3. The Civil Service Commission, as the central personnel agency of the Government, shall establish a career service and adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil service. It shall strengthen the merit and rewards system, integrate all human resources development programs for all levels and ranks, and institutionalize a management climate conducive to public accountability. It shall submit to the President and the Congress an annual report on its personnel programs.83

The powers and functions of the CSC under the 1987 Constitution reaffirms the policy laid down by the Civil Service Decree84 of President Ferdinand Marcos,85 which is in turn reaffirmed by the Administrative Code of 1987.86

The sphere of authority of the GCG is also different from that of the CSC. As the designated “central personnel agency of the government”, the CSC is an administrative agency that merely exercises administrative functions with respect to government employees. It deals with matters pertaining to eligibility, qualification, status, compensation, discipline and termination of employees in the civil service.87 In other words, the powers of the CSC is limited to the personnel matters GOCC employees – and only of chartered ones at that. The CSC has no jurisdiction or power over the GOCC, as such. The powers of the GCG,88 on the other hand, pertain to the GOCC or the corporation itself. While R.A. 10149 grants the GCG certain powers incidentally relating to the employees of the GOCCs, whether chartered or non-chartered, these do not, as it cannot, supplant the CSC or diminish the latter’s powers. Employees of GOCCs with original charters remain part of the civil service and under the jurisdiction of the CSC.

While the CSC is constitutionally mandated to “strengthen the merit and rewards system, integrate all human resources development programs for all levels and ranks, and institutionalize a management climate conducive to public accountability” in the civil service, this does not impair the power of the GCG to develop a CPCS applicable to employees of chartered [and non- chartered] GOCCs. Corollarily, the statutory powers of the GCG under R.A. 10149 does not encroach upon the jurisdiction of the CSC.

The provisions of R.A. 10149 regarding the CPCS can be considered as a legislative enactment of Congress pursuant to Section 5 of Article IX-B of the 1987 Constitution,89 which provides:

Section 5. The Congress shall provide for the standardization of compensation of government officials and employees, including those in government-owned or controlled corporations with original charters, taking into account the nature of the responsibilities pertaining to, and the qualifications required for, their positions.

As earlier stated, the powers granted to the GCG under R.A. 10149 to develop a CPCS applicable to all positions in GOCCs and consisting of classes of positions, is similar to that given to the DBM under R.A. 6758. Notably, R.A. 6758 directed the DBM to establish and administer a unified Compensation and Position Classification System that shall be applied for all government entities, as mandated by the Constitution90 – that is, Section 5 of Article IX-B thereof.

In other words, the CPCS provisions of R.A. 10149 simply transferred to the GCG a directive that was given to the DBM under R.A. 6758. In this respect, in the development and implementation of its CPCS, the GCG can simply follow the model of the DBM, which received no objection as to encroachment into the jurisdiction of the CSC.

That Congress, thru R.A. No. 10149, has expressly empowered the President to establish a uniform compensation system for all GOCCs was already pronounced by the Supreme Court in the recent case of Galicto v. Aquino, et al.91 The Court declared therein that R.A. 10149 “authorizes the President to fix the compensation and position classification system for all GOCCs and GFIs, as well as other entities covered by the law.”

ii. “Authorized Salary”

Of note is the peculiar wording of R.A. 10149 as to non-diminution. The law provides for non-diminution of “salaries” and not “benefits” as commonly used in the Labor Laws92 and jurisprudence. Moreover, R.A. 10149 provides for non-diminution only of “authorized” salaries. Thus, in determining the base amounts on which the new CPCS shall be developed, the issue turns upon what constitutes “authorized” salaries. While the issue is purely legal, the practical consequences directly impact the rank-and-file employees of GOCCs as the resolution of this question will determine the compensation that they will receive once the new CPCS is implemented.

In Songco v. NLRC,93 the Supreme Court ruled that the term “salary” broadly refers to the recompense or consideration made to a person for his pains or industry in another man’s business, and carries with it the fundamental idea of compensation for services rendered.94 The Supreme Court also held that the term “salary” is in essence synonymous with the terms “pay” and “wages”.95

In Cebu Institute of Technology v. Ople,96 the Supreme Court in effect ruled that allowances are excluded from the basic salary of employees. Benefits, such as allowances, are compensations given to employees in addition to their regular salaries. While some benefits are mandated by law, others are granted by the employer out of liberality, or as an incentive.

When R.A. 6758 was enacted, the law provided for the integration of all allowances into the prescribed standardized salary rates, except for certain specified allowances97 and such other additional compensation as may be directed by the DBM.98 “These allowances are granted to officials and employees of the government to defray or reimburse the expenses incurred in the performance of their official functions.”99 In Public Estates Authority v. COA,100 the Supreme Court elucidated on the coverage of “other additional compensation” that may be directed by the DBM, thus:

No. 7 of the foregoing list is a “catch-all proviso” covering all other allowances/fringe benefits not integrated into the basic salary and allowed to be continued only for incumbents as of June 30, 1989. Those benefits covered by the “catch-all proviso” includes the following: (1) rice subsidy; (2) sugar subsidy; (3) death benefits other than those granted by the GSIS; (4) medical/dental/optical allowances/benefits; (5) children’s allowance; (6) special duty pay/allowance; (7) meal subsidy; (8) longevity pay; and (9) teller’s allowance. Thus, under the said “catch-all proviso,” the legislative intent is just to include the fringe benefits which are in the nature of allowances, and to exclude those benefits which are of a different genus, such as financial assistance benefits.101 (emphasis supplied)

In the Corporate Compensation Circular[s] issued by the DBM prescribing the rules and regulations for the implementation of the revised compensation and position classification system under R.A. 6758,102 it is expressly provided that the “payment of other allowances/fringe benefits and all other forms of compensation granted on top of basic salary, whether in cash or in kind, not mentioned in Sub-Paragraphs 5.4 and 5.5 [therein] shall continue to be not authorized.”103 The Circulars further qualify that “payment made for such unauthorized allowances/fringe benefits shall be considered as illegal disbursements of public funds.”104

In a host of cases, the Supreme Court has upheld disallowances made by the Commission on Audit (COA) of benefits and allowances deemed to be granted to GOCC employees in violation of existing laws.105 The COA still continues to issue Audit Observation Memorandum to GOCCs that continue to grant allowances and other additional compensation without following the requirements prescribed by law, such as prior approval from the President of the Republic.106 While only members of the Board of Directors and responsible officers, and not rank-and-file employees, have been made to restitute such unauthorized allowances,107 its possible impact on employee compensation in view of an imminent implementation of a new CPCS cannot be overlooked.

It bears emphasis that while the non-diminution provision of R.A. 10149 provides that “in no case shall there be any diminution in the authorized salaries as of December 31, 2010 of incumbent employees of GOCCs,” the same law does not define “authorized salaries.” This is unlike DBM-CCC No. 10, implementing R.A. 6758, wherein the following is provided:

4.0 DEFINITION OF TERMS

4.1 The present salary of an incumbent for purposes of this Circular shall refer to the sum total of actual basic salary including allowances enumerated hereunder, being received as of June 30, 1989 and certified and authorized by the DBM.

4.1.2 Amelioration Allowance equivalent to ten percent (10%) of basic salary or P150.00 per month, which ever is higher;

4.1.3 COLA granted to GOCCs/GFIs covered by the Compensation and Position Classification Plan for the regular agencies/offices of the National Government and to GOCCs/GFIs following the Compensation and Position Classification Plan under LOImp. No. 104/CCC No. 1 and LOImp. No. 97/CCC No. 2, in the amount of P550.00 per month for those whose monthly basic salary is P1,500.00 and below, and P500.00 for those whose monthly basic salary is P1,501.00 and above, granted on top of the COLA/BEP mentioned in Item 4.1.1 above;

4.1.4 Stabilization Allowance; and

4.1.5 Allowance/fringe benefits converted into Transition Allowance pursuant to Memorandum Order No. 177, as implemented by Corporate Budget Circular No. 15, both series of 1988.

4.2 Allowances enumerated above are deemed integrated into the basic salary for the position effective July 1, 1989.

4.3 Transition allowance, for purposes of this circular shall mean the excess of the present salary of the incumbent defined in Item 4.1 hereinabove, over the eighth step of the Salary Grade to which his position is allocated.108

Moreover, not only does DBM-CCC No. 10 define what comprises “present salary”, but it also states which allowances are not included in an employee’s basic salary, to wit:

5.0 IMPLEMENTING PROCEDURES

… … …

5.4 The rates of the following allowances/fringe benefits which are not integrated into the basic salary and which are allowed to be continued after June 30, 1989 shall be subject to the condition that the grant of such benefit is covered by statutory authority.

5.4.1 Representation and Transportation Allowances (RATA) of incumbent of the position authorized to receive the same at the highest amount legally authorized as of June 30, 1989 of the level of his position within the particular GOCC/GFI;

5.4.2 Uniform and Clothing Allowance at a rate as previously authorized;

5.4.3 Hazard Pay as authorized by law;

5.4.4 Honoraria/additional compensation for employees on detail with special projects of inter-agency undertakings;

5.4.5 Honoraria for services rendered by researchers, experts and specialists who are of acknowledged authorities in their field of specialization;

5.4.6 Honoraria for lecturers and resource persons/speakers;

5.4.7 Overtime Pay in accordance to Memorandum Order No. 228;

5.4.8 Clothing/laundry allowances and subsistence of marine officers and crew on board GOCCs/GFIs owned vessels and used in their operations, and of hospital personnel who attend directly to patients and who by nature of their duties are required to wear uniforms;

5.4.9 Quarters Allowance of officials and employees who are presently entitled to the same;

5.4.10 Overseas, Living Quarters and other allowances presently authorized for personnel stationed abroad;

5.4.11 Night Differential of personnel on night duty;

5.4.12 Per Diems of members of governing Boards of GOCCs/GFIs at the rate as prescribed in their respective Charters;

5.4.13 Flying Pay of personnel undertaking aerial flights;

5.4.14 Per Diems/Allowances of Chairman and Members/Staff of collegial bodies and Committees; and

5.4.15 Per Diems/Allowances of officials and employees on official foreign and local travel outside of their official station;

5.5 Other allowances/fringe benefits not likewise integrated into the basic salary and allowed to be continued only for incumbents as of June 30, 1989 subject to the condition that the grant of the same is with appropriate authorization either from the DBM, Office of the President or legislative issuances are as follows:
5.5.1 Rice Subsidy;
5.5.2 Sugar Subsidy;
5.5.3 Death Benefits other than those granted by the GSIS;
5.5.4 Medical/Dental/Optical Allowances/Benefits;
5.5.5 Childrens Allowance;
5.5.6 Special Duty Pay/Allowance;
5.5.7 Meal Subsidy;
5.5.8 Longevity Pay; and
5.5.9 Tellers Allowance.
5.6 Payment of other allowances/fringe benefits and all other forms of compensation granted on top of basic salary, whether in cash or in kind, not mentioned in Sub-paragraphs 5.4 and 5.5 above shall be discontinued effective November 1, 1989. Payment made for such allowances/fringe benefits after said date shall be considered as illegal disbursement of public funds.109

R.A. 10149 is a law that is self-executing, which means that it can be implemented even without implementing rules and regulations operationalizing its provisions. This means that in the absence of an explicit definition of “authorized salary”, the GCG shall be guided by the provisions and principles of R.A. 10149 in conducting a compensation study that is a precursor to its development of a new CPCS.

And in the absence of such operationalized definition of “authorized salary”, GOCCs and its employees will naturally to hold on to their present compensation packages, whether with legal basis or not, in the hope of maintaining the same level when the new CPCS is in place.

III. THE POLICY ON NON-DIMINUTION OF BENEFITS

The principle of “non-diminution of benefits” is one that is statutory in origin, but elevated by the Supreme Court into a jurisprudential doctrine. Thus, while it is grounded on Article 100 of the Labor Code,110 which is applicable to employees in the private sector, the Supreme Court has effectively elevated it into a principle of equity applicable to all classes of employees. This is along the lines of the pronouncement of the Supreme Court that the pro-poor and pro-labor provisions of the Constitution111 apply to the working class, whether in government or in the private sector.112

In Home Development Mutual Fund v. COA,113 the Supreme Court held that Republic Act No. 6971 (R.A. 6971), or the “Productivity Incentives Act of 1990”, was applicable to GOCCs incorporated under the general corporation law but not to GOCCs performing proprietary functions which are created, maintained or acquired in pursuance of a policy of the state, enunciated in the constitution or by law, and those whose officers and employees are covered by the Civil Service. Section 12 of R.A. 6971 likewise provides for non-diminution of benefits.

The principle of non-diminution of benefits comes into play when the employer changes existing company policies pertaining to employee benefits, which results in a diminution of the benefits already enjoyed by the employees.

This presupposes that there the benefits withdrawn have already ripened into practice, in view of its repeated and consistent grant, such that the employees have a reasonable expectation that such benefit shall continue to be granted. This is the case for GOCCs, such as the MWSS, that have been giving generous benefits to its employees.

For the rule against diminution of benefits to apply, the following requisites must be present: (1) the grant of the benefit is founded on a policy or has ripened into a practice over a long period; (2) the practice is consistent and deliberate; (3) the practice is not due to error in the construction or application of a doubtful or difficult question of law; and (4) the diminution or discontinuance is done unilaterally by the employer.114

Among the benefits included in the prohibition against elimination of benefits are food/meal allowance,115 noncontributory retirement plan,116 and monthly emergency allowance.117

It has been held, however, that where there is no law entitling employees of GOCCs to certain allowances or bonuses, such employees do not acquire a vested right over the same.118 A vested right is one that is absolute, complete and unconditional; to its exercise, no obstacle exists; and it is immediate and perfect in itself and not dependent upon any contingency.119 As such, the government may order the discontinuation the same, and in some cases, require restitution from responsible directors and officers.120 In Baybay Water District v. COA,121 the Supreme Court held that:

The erroneous application and enforcement of the law by public officers does not estop the Government from making a subsequent correction of such errors. More specifically, where there is an express provision of law prohibiting the grant of certain benefits, the law must be enforced even if it prejudices certain parties due to an error committed by public officials in granting the benefit… Practice, without more, no matter how long continued, cannot give rise to any vested right it is contrary to law.122

Indeed, the fundamental difference between GOCCs and private corporations is that the funds being managed by GOCCs are very well deemed to be public funds123 which cannot be gratuitously disbursed by its Management without legal authority. Thus, even though the grant of generous bonuses, allowances, and benefits have ripened into practice, the same can nonetheless be revoked for being given in violation of existing laws.

Another point is that once the CPCS mandated under R.A. 10149 is implemented, employees in non-chartered GOCCs can no longer bargain with respect to their salaries and benefits through Collective Bargaining Agreements (CBA). Such employees may still collectively bargain with respect to non-economic items, but their compensation may no longer be bargained as it shall be fixed by law, through the CPCS. In effect, the CPCS shall also standardize collective agreements of chartered and non-chartered GOCCs as the CBA of non-chartered GOCCs will, in essence, be the same as the Collective Negotiation Agreement (CNA) of chartered GOCCs.

A. Dichotomy of Compensation

In Philippine Ports Authority v. COA,124 the Supreme Court ruled that with the salary standardization scheme provided for by R.A. No. 6758, additional financial incentives may no longer be given by the government owned and controlled corporations to their personnel except to incumbents as of July 1, 1989. The rationale for the same was expressed in Philippine International Trading Corp. v. COA,125 wherein the Supreme Court held that incumbents as of July 1, 1989 shall continue to receive the allowance mentioned in Section 12 even after R.A. No. 6758 took effect, thus:

First of all, we must mention that this Court has confirmed in Philippine Ports Authority vs. Commission on Audit the legislative intent to protect incumbents who are receiving salaries and/or allowances over and above those authorized by RA 6758 to continue to receive the same even after RA 6758 took effect. In reserving the benefit to incumbents, the legislature has manifested its intent to gradually phase out this privilege without upsetting the policy of non-diminution of pay and consistent with the rule that laws should only be applied prospectively in the spirit of fairness and justice.126

In other words, when in the implementation of R.A. 6758, there was created a dichotomy of employees. On the one hand, there were the incumbents as of July 1, 1989, and on the other, were the employees hired after such date. The cut-off date was determinative of whether an employee is entitled to the continued grant of a benefit previously enjoyed by employees, and not as a limitation or imposition of a maximum amount that such class of employees is entitled.127 Thus, the compensation received by employees already employed as of July 1, 1989 was different from those hired after such date when R.A. 6758 was implemented. This is in keeping with the policy of non-diminution.

Given the provision on non-diminution of “authorized salaries as of December 31, 2010 of incumbent employees,” with respect to the CPCS to be developed by the GCG pursuant to R.A. 10149, the likely result is that there will again be two classes of employees once the CPCS is implemented: (1) those incumbents receiving a certain amount of compensation as of December 31, 2010, that is higher than the new rates under the CPCS; and (2) employees hired after December 31, 2010 or have been receiving an amount of compensation less than the rates prescribed by the new CPCS. For the first class of employees, they retain the amount of authorized salaries that they have been receiving prior to the implementation of the new CPCS, while for the second class, they adhere to the rates prescribed by the CPCS.128

Therein lies the silver lining. With the new CPCS, while some employees may indeed receive compensation lower than their current ones on account of its unauthorized disbursement of the same, there remains the chance that employees of other GOCCs will receive compensation which is higher than what they are currently receiving. This is a consequence of the implementation of a unified compensation system.

IV. SUMMARY

The current government has finally mustered the political will to address the decades-old problem of the government corporate sector through the enactment of R.A. 10149 and its consequent mandate for the development of a uniform Compensation and Positioning Classification System that will apply to all GOCCs, without distinction or exemption.

The crucial issue in this aspect of government corporate sector reform is: what shall be the future compensation that employees of GOCCs will receive under the new CPCS? The resolution of this question is one that is indeed much anticipated and speculated.

The question of what is “authorized salary” for purposes of the new CPCS is indeed one that is purely legal and can be very well considered to be abstract. However, its impact on the ordinary rank-and-file employee, who has mapped his/her life and that of his/her family’s on the basis of such, is certainly one that is tangible and real. Again, in the case of MWSS, 76% of the take-home pay of its employees are based on allowances, authorized or not. These employees have taken on loans, built houses, and sent their children to good schools on the expectation of receiving such pay every 15th and 30th of the month. Needless to say, the impact of taking away such amounts would radically change their lives.

For other GOCC employees, there is the prospect that the new CPCS will bring a more rewarding recompense for their work. This is perhaps more true for employees of GOCCs who are receiving compensation that is much less generous compared to others.

Moving forward, with the enactment of R.A. 10149, there may be a need to revisit the state policies with respect to the treatment of GOCCs. In the current state of law and jurisprudence, chartered GOCCs are covered by civil service laws while non-chartered GOCCs are governed by the Labor Code. With the implementation of the CPCS mandated under R.A. 10149, and its consequent elimination of bargaining of economic benefits for non-chartered GOCCs, it may no longer be accurate to say that the full extent of the Labor Code applies to non-chartered GOCCs.

At the end of the day, the question is one that is not just purely legal, but is a question of policy and equity as well.

ROYAL PAINS: LÈSE MAJESTÉ IN AN INTERNATIONAL RIGHTS-BASED LEGAL FRAMEWORK

Uneasy lies the head that wears a crown.
– William Shakespeare,Henry IV, Part I.

Throughout history, in the seemingly innocuous project of mythmaking by the State of its own image, many people who have dared to trample with the process—those who have inflicted upon the State what is called lèse majesté1—have undergone dire legal consequences. The State, in the legitimate exercise of its monopoly of violence in society, has sought to reinforce this image for its own survival as a general framework through which it maintains order. This image persists as a mechanism essential to the very existence of the State, despite its having undergone criticism for numerous violations of human rights.

In a narrower sense, the part of that image that shall form the focus of this Note is largely confined in its physical manifestations: symbols, objects, and even persons that constitute a crucial link in the generation of State myths. In the Philippines, majesty manifests itself in the symbols of State authority such as the flag, the National Anthem, and other state insignia. Respect for these symbols is ingrained in the minds of most Filipinos from childhood. Significantly, treating these symbols with contempt, even under the guise of enjoying the mantle of protection under the Constitution’s Bill of Rights, is punishable under the law. To wit, Section 34 (a) of the Flag and Heraldic Code of the Philippines2 prohibits the act of mutilating, defacing, trampling on, or casting contempt, dishonor or ridicule upon the flag or over its surface. This act of disrespect against the flag is considered an injury against State majesty. In the Philippines and elsewhere, prohibition against lèse majesté remains a salient feature of political law despite advancing strides in human rights at the international level.

In this Note, we focus on the situation where the manifestations of State majesty happen to coincide in the body of a single person, as in monarchy. While it is simpler to imagine how one can be expected to treat inanimate objects with deference in non-monarchical settings such as the Philippines, the dissonance emerges when we examine the confluence of human energies and legal concessions to favor the stature of one individual (and in many cases, his family included) as the centerpiece of the State’s mythmaking. In many cases, these persons, called monarchs, are often constitutionally protected through prohibitions against lèse majesté. They are often beyond the pale of liability and accountability, at least in theory. While in most present-day monarchies, democratically-elected governments are in place, the legal fictions of kingly supremacy remain in many aspects of these countries’ fundamental laws. In this Note, we shall examine these fictions in the light of the monarchical State’s obligations under an international rights-based legal framework.

I. TEARING DOWN PERSONIFICATIONS

On February 4, 1948, after protracted negotiation with the British government, the Soulbury Constitution finally took effect, transforming the colony of Ceylon into a fully-sovereign and independent state. On that occasion, the island was declared a Dominion under the British Crown.3 For more than two decades, Ceylon was a Commonwealth Realm4 with the British monarch as the formal head of state. During this period, two persons held the distinction: George VI reigning as King of the United Kingdom and the British Dominions beyond the seas until his death in 1952, and his daughter Elizabeth II reigning in a separate and distinct capacity as Queen of Ceylon until the adoption of a republican constitution. In 1954, the Queen of Ceylon visited her realm for the first time to open the Ceylonese Parliament, where she was received in jubilation.

However, things had changed by the mid-1960s. Many Ceylonese increasingly desired more than just the fiction of a largely absentee European head of state represented in the island by a Governor-General; an office which carried with it the vestigial flavor of British colonial times. The Prime Minister, who was in all respects Ceylonese, could only advise the Queen of Ceylon, residing primarily in London, through the Westminster Parliament. Increasingly, it was becoming more difficult for the Ceylonese to reconcile the idea of being a fully independent nation with a government under an essentially alien monarchy.

Such was the political setting against which Her Majesty’s Privy Council for Ceylon decided the case of The Bribery Commissioner v. Pedrick Ranasinghe. As Professor M.L. Marasinghe observes, the decision was essentially the death warrant of the Soulbury Constitution. The main issue in that case was the right of the Minister of Justice to appoint a Bribery Commissioner under the Bribery Amendment Act, “giving the appointee the status and ranking similar to that of any member of the country’s judiciary, when the Constitution had in fact left the appointment of members to the judiciary in the hands of an independent body, … the Ceylon Judicial Service Commission.”

In other words, the issue concerns the constitutionality of the appointment of a member of the Ceylonese judiciary by the Justice Minister, himself appointed by the Queen on the advice of the Prime Minister of Ceylon. But while Bribery Commissioner was ultimately resolved in the negative, the Privy Council went further to rule, via obiter, that there are matters which “represent the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution; and these are therefore unalterable under the Constitution.” While the foregoing disquisition had not exactly been examined by the courts afterwards, it raised the realistic possibility of the Privy Council ruling that certain parts of the Constitution are unalterable notwithstanding a majority vote of Parliament— an issue that raised nagging doubts about the sovereignty of the lawmaking body. Nag Parliament it certainly did, so much so that eight years after Bribery Commissioner, a new constitution was adopted repudiating Dominion status and the British Crown. Ceylon had become a parliamentary republic under the non-colonial name Sri Lanka.

On its face, the departure from a monarchical form of government is viewed as an assertion of Sri Lankan sovereignty and a recognition of its right to govern its own affairs with institutions of its own choosing. The independence of Sri Lanka in 1948 was peacefully obtained through certain concessions in favor of the British monarchy. Admittedly, in many instances during decolonization, the British monarchy was always an issue to contend with regarding the position it assumes in the former colony upon independence. In Ireland for instance, also a former Dominion, resentment against the British monarchy was so much more pronounced as compared elsewhere in the British Empire that it decided to adopt a republican constitution as soon as possible, and not without the loss of many lives. At the point of transfer of sovereignty, Sri Lanka maintained loyalty to the royal establishment by retaining the institution at the apex of its Westminster-style parliamentary government, at least in theory.

But how much (or little) of this theory—this legal fiction—must one need to consider to be satisfied that his rights, whether political, civil or human, had not been impaired? One need not look far from common sense that in such an arrangement, as in monarchies elsewhere, the mere accident of birth has always drawn criticism for the extraordinary privilege enjoyed by royal heads of state and their families, not only socially, but more importantly with respect to the law. Yack, in his examination of the Hegelian concept of monarchy, notes that “most readers find constitutional monarchy a disappointing climax to the Philosophy of Right” and that the concept of monarchy escapes ‘Räsonnement’(ordinary deductive reasoning).” The Sri Lankan example above is a testament to this point.

Nevertheless, aside from being the dispensers of law and justice from
ancient times, monarchs (at least in constitutional forms) have evolved into the living personification of the State. In Spain for example, the King is deemed the symbol of the “unity and permanence” of the Spanish Nation and “assumes the highest representation of the Spanish State in international relations.” As such his person “is inviolable and shall not be held accountable.” Interestingly, as a state-party to the Rome Statute of the International Criminal Court, Spain is under obligation to observe the irrelevance of official capacity in relation to criminal responsibility in Article 27 thereunder.

How did this legal fiction develop? Scheuerman posits that for most of recorded human history, “[k]ingship is the norm … and liberal democracy a rare and quite recent exception.” Citing Bendix, he also observes that “the principle of hereditary monarchy was challenged only some two centuries ago.” The practice of hereditary succession—the passing of royal authority from the old sovereign to the young in the same family, and from dynasty to dynasty, reflective of the fictive descent from God—has always been a central theme in the justification for the existence of monarchy. For many centuries, the Japanese government officially held out the descent of the Imperial Family from the Shinto sun goddess Amaterasu as part of state mythology. It was not until 1946 when the Showa Emperor issued the Humanity Declaration renouncing his divinity in human form. Nevertheless, many Japanese continue to revere the Emperor with the same deference befitting a demigod, because even with the complex connections claimed by theologians between divinity and monarchy, people have always tended to look upon kings as gods on earth, or at the very least, representatives of the divine. On this point, Scheuerman offers an interesting argument:

When we observe that monarchy has been “the preferred form of structured temporal authority across a wide band of cultures on every major continent,” it becomes difficult to deny, as one recent commentator notes, that kingship “has served as an intellectually and emotionally satisfying focus” of human energies throughout the greater portion of both unrecorded and recorded history. (emphasis supplied)

The nexus between divinity and monarchy had become so entrenched that Hall refers to a framework of sacerdotal kingship, where the king “was valued as a provender of order, as ‘legislator and pacifier’ from whom Christian society was to receive Rex, lex, pax.” Nonetheless, despite the divine sanction, it was also through divine law that kings were made accountable to human society, or to the clergy at the very least. Such was the entrenchment of divinity in the temporal authority of a royal head of state that this authority extended to all imaginable areas of human concern. From this point it must be recognized that when Hobbes wrote his seminal treatise on the Leviathan, he, like his predecessors before him, point out in response to proponents of limited government that the mere fact that one must attempt to limit sovereignty, and ineluctably fail, is in itself a recognition that sovereignty is elsewhere. Corollarily, limiting the right of the sovereign through the establishment of a finite set of such powers which may have been granted him is no sovereign at all.

As a consequence of this special position in society, the king himself, as the personal embodiment of the nation, is regarded as a source of law. Macy, writing on the role of the English Crown, notes that “[a]ccording to the forms of English law the entire government is built up around the throne.” In the United Kingdom until present, all government authority resides and flows forth from the Queen, in theory at least. Parliament opens and operates on a program of government by the Queen-in-Parliament; after elections, the Queen invites the leader of the party with the most number of seats won to become Prime Minister and form a Government in Her name; British courts decide cases in the name of Her Majesty as the fount of all justice in the realm; criminal cases are prosecuted by the State as Regina (The Queen) v. X; all administrative officers and bureaucrats are required to take an oath covenanting to execute their duties in the name of the Queen; all honors and distinctions are conferred by the Queen as the sovereign of all British orders of merit in her capacity as fons honorum—all these in reciprocation to her coronation vow of consecrating her life, long or short, “to govern the Peoples of the United Kingdom,… according to their respective laws and customs.” While in practice many of these powers are usually exercised on her behalf by and on the advice of a popularly elected government, the theory of personification persists in the realities of government in such a scale that is difficult to simply dismiss. The constitutive character of monarchy has been so successful in the United Kingdom that when its colonies became independent, the royal institution has been relied upon as ‘state-maker’ in the formative years of these newly independent nations, such as in Sri Lanka. This is particularly important in stabilizing the young nation from an otherwise tumultuous foray into independence, the monarchy substituting for a semblance of permanence—an institution that remains despite the fact that governments come and go.

All of the foregoing dignities and distinctions incidental to the office of a monarch has led to the emergence of a body of laws against lèse majesté, or the crime of violating majesty, where an offense against the person of a reigning monarch is considered an offense against the State itself. Lèse majesté draws its origins from the concept of majesty inherent in the person of a royal head of state. In other words, from the premise that all temporal authority on earth proceeds from divine sanction, majesty manifests itself in human form through the king, giving rise to the obligation on the part of those subject to his authority to maintain inviolate this majesty. For most of human history, this constituted the only manner through which an individual might begin to imagine the creature called ‘State.’ To violate the person of the king therefore was as much an offense to the State as on his person, and in many instances, the State and the person of the king had become interchangeable constructs through majesty. In the eighteenth century, majesty, in most of the collective French psyche, “resided in the king, who was the possessor and personification of the public power” (italics supplied). Kelly makes an interesting observation:

Many controversialists of that century, among them the proponents of the thèse nobiliaire, like the Comte de Boulainvilliers, and the Gallican parl[ia]mentary opposition to Louis XV, presumed that there were “fundamental laws” or a “constitution” which placed fixed limits on the royal will. Yet, even if France were held to be a “tempered monarchy” and not an absolute one, the method of enforcing these limits remained obscure. The king embodied the state. Any attacks on majesty-and they were widely defined to include libels, derogatory utterances, and counterfeiting-were assaults against the monarch in his public personality and, as such, against all his wards who constituted, beneath him, the nation. (emphasis supplied)

The State having metamorphosed into human form, those who were largely dissatisfied with the system expressed discontent through attacks on the person of the king, not only through physical means but also through the perpetration of libels, defacement of symbols, debauchery and references to the impotence of the sovereign power and the myths it generated of itself. Yet Kelly also admits that most of the libels lacked any motive of reform. Such an ambiguity, he notes, proved instrumental in the gradual erosion of the concept of lèse majesté into lèse nation, or an injury perpetrated against the newly emerging, somewhat mythical construct called ‘nation.’

Despite this development, references to lèse majesté remained, even in the aftermath of the French Revolution. In the context of republican defection, a new, vastly different ideology of majesty emerged. Sorel writes:

With majesty transferred from the king to the people, the crime of lèse-majesté is diverted from the person of the king, and there arises a conception of treason toward the State by which the king, who formerly could only be the victim, can now be imagined as the primary transgressor.

Thus, with this development in the concept of majesty, it now becomes possible and relevant to examine its implications in an international rights-based legal framework at present.

II. MAJESTY AND RIGHT AS A PORTRAIT OF THE SOVEREIGN
AUTHORITY: THE MUNICIPAL-INTERNATIONAL LAW DEBATE

When Harry Nicolaides, an Australian national, arrived at the Bangkok airport to fly out to Melbourne in 2008, he was unaware that a warrant of arrest had been issued against him. The Thai police arrested him at the airport just as he was about to board his flight. The criminal charge against him was for lèse majesté, a criminal offense that can carry a penalty of up to 15 years imprisonment in Thailand. He had been charged with the offense for the publication of his novel “Verisimilitude” in 2005, which, according to Thai media, was a “trenchant commentary on the political and social life of contemporary Thailand.” The novel had only 50 copies published, of which only seven were actually sold. In January 2009, the Bangkok court ruled that the novel had caused dishonor to the Thai royal family and sentenced Nicolaides to three years in jail. By the following month, Nicolaides had been granted a royal pardon by the King of Thailand and was set free.

A constitutional monarchy with a parliamentary form of government, Thailand has been criticized in recent years for the renewed vitality of its law on lèse majesté. The Nicolaides affair was part of the increased crackdown on anti-monarchy activities and a renewed focus on lèse majesté as an important element of the national agenda. Preechasilpakul and Streckfuss offer a useful examination of Thailand’s lèse majesté law through its various incarnations in the past century. The oldest version, enacted in 1900 before the collapse of the absolute monarchy, criminalized the act of defamation against not only the members of the royal family, but also foreign heads of state, both royal and non-royal.

As Preechasilpakul and Streckfuss observe, under the 1900 provision acts against the King were deemed committed against the State, and vice versa. Furthermore, because of the absolute monarchy prevailing in then Siam, majesty enabled the law to interchange the State and the person of the King. The protection extended not only to present monarchs but also to their descendants “as part and parcel of absolute monarchy under which the king, as holder of the highest power, is inviolable, as are all of those closely related to him.”

An exception to the defamation provision was introduced in the aftermath of the 1932 Thai coup. Now under a constitutional monarchy, provision 104 of the amended Thai Criminal Code makes the following interesting exclusion:

Provided that there shall be no offence under this section when the said words or writing or printed documents or means whatsoever will merely be an expression of good faith or amount to a critical and unbiased comment on governmental or administrative acts within the spirit of the Constitution or for the public interest.

Provision 104 creates legal space in favor of utterances and acts directed against the King and the royal family for as long as these acts meet the standard of falling “within the spirit of the Constitution,” or whenever “the public interest” calls for it, and for as long as such conduct is done as an “expression of good faith.” However, it must be remembered that this innovation was introduced during a time when liberal reforms were being incorporated for the first time into Thai law. After the end of absolute monarchy in 1932, resentment against the excesses of the old order was so widespread in Thai society that it seemed fashionable to adhere to rights-based reforms.

A comparison of two cases decided by the Thai High Court before and after 1932 reveals the changes in the scope of application of the Royal Defamation Law. In 1927, an accused stood charged with the offense of rebellion for claiming that the king, for his wrong decisions and for ruling poorly, must be removed from the station in which he had been born. The court sentenced him to seven years imprisonment. The same court, deciding on the criminal liability of a defendant who, in the process of campaigning for public office in the 1946 elections, uttered comments against the government for restricting people from speaking or criticizing it, disposed of the case in the following manner:

[A] person speaking publicly while campaigning for election, under democratic principles, the government may be criticized.[sic] Although the language of the defendant may have been intemperate, it nonetheless did not violate Section 104, citing the final paragraph of the provision which stipulated that if the action in question was done within the spirit of the Constitution or for public benefit, it shall not be held as in violation. This immunity did not extend only to what was said during parliamentary proceedings. The central principle of democratic governance is that sovereign power belongs to the people. Governments can thus be either criticized or praised, and so the defendant is found not guilty.

But on a macro level, despite the aforesaid exception and even in the
usual turbulence of Thai political life, where the constitution has been amended at least eleven times in the last century, the provision against lèse majesté remains a consistent feature. The current Thai Constitution, like all older versions that came before it, provides that “[t]he King shall be enthroned in a position of revered worship and shall not be violated. No person shall expose the King to any sort of accusation or action.”

If the law against lèse majesté is intended to protect the dignity and the integrity of the person of the king and the State, then the issue arises as to whether all other individuals within the polity are entitled to otherwise recognized rights under elective governments. Drawing from Kelly’s classic theory of majesty in the preceding section, the king, as dispenser of all law and justice in the realm, possesses the prerogative to grant, within the extent of his own sense of benevolence, concessions to individuals subject to his sovereign authority. The concept of ‘right’ traces its roots from grants and concessions of the sovereign. Even in republican contexts, a crude analogy can be drawn with respect to codified bills of rights which perform essentially the same function as royal concessions: a limitation on the otherwise awesome powers of the State against the lowly individual. However, where a sense of permanence is attained in codifying these rights as checks against the sovereign authority, such is blithely lacking in royal concessions which may be confiscated and revoked anytime at His Majesty’s pleasure.

At this point, it becomes relevant to examine where the divide lies between State sovereignty exercised through majesty (bearing in mind that it is through majesty that the State identifies, organizes, and characterizes itself, both in its domestic and international relations) and State sovereignty tempered through the grant and/or recognition of individual rights. More precisely, we need to determine if such a dichotomy actually exists. But how does one proceed to address this question with the knowledge that the monarchic State affords full immunity in favor of the person of its leader? A particularly difficult aspect in the scrutiny of political crimes such as lèse majesté is the tendency to rely on municipal laws and practices, as well as municipal interpretations of what are considered rights. This difficulty can be explained by the fact that in the main, the primary content of the law on political crime hinges upon the very existence of the State itself, and mostly upon the general recognition that such concerns fall exclusively within a State’s domestic jurisdiction. Ferrari, writing on the subject, observes that “[p]olitical crime is not a natural crime. It is dependent upon the legislator, and differs considerably from place to place.” An offense against majesty, regardless of its origin within or outside the State, is deemed actionable under the municipal law of the offended State. An eminent commentator on French criminal law defines political crime as:

[T]hose felonies and misdemeanors which violate only the political order of a state, be that order exterior, as in attacking the independence of the nation, the integrity of its territory, the relations of the state to other states; or interior, as in attacking the form of government, the organization and functioning of the political powers and the political rights of citizens. (emphasis supplied)

However, this must not mean that an examination of lèse majesté in the lens of international law is no longer possible. A practical proposition is here offered for the reader’s consideration: this problem can only be accomplished by examining lèse majesté not in the context of municipal law, but in the light of the monarchic State’s obligations under an international rights-based legal framework. This is in order to avoid circuitous references to the State when referring to the responsibilities of its leaders, considering that such royal heads, under municipal law, are protected beyond the pale of liability. In other words, if a royal head of state enjoys legal immunities under municipal law, then the question as to the conformity of these immunities with the State’s international obligations to observe certain rights can be addressed with reference to an international rights-based legal framework. This deference to sources of law beyond the sovereign State has become an observable phenomenon in recent years, and has been most pronounced in Europe than elsewhere. MacCormick, commenting on the present realities in Europe, expresses his doubts on the feasibility of proudly subscribing to an Austinian theory of law and state premised upon a classic formulation of sovereignty amidst deference to European Community law:

On the face of it, then, it may be possible to give some account of the realities of our modern Europe without departing from an essentially Austinian theory of law and state grounded in the theory of sovereignty as a matter of habitual obedience to sanctioned commands. Yet is the account a very convincing one? Or does it not proceed with too narrow a perspective? If you look at matters exclusively from the point of view of a decision-maker in the United Kingdom, it might be possible to be satisfied with this, so to say monocular, view. In this view, the European Community is sufficiently accounted for on the thesis that somebody here once said ‘let these Community organs be obeyed as to those matters quoad the United Kingdom’; and now all these organs are being obeyed as a matter, ultimately, of obedience to our own native sovereign.

The possibility of examining sovereign immunities in international law is apparent in the ruling of the United States Supreme Court in Schooner Exchange v. McFadden. In that case, a commercial schooner named Exchange was sailing off the coast of America in 1812. The Exchange was owned by two citizens of Maryland. In the course of its voyage, it was seized by the French navy and by order of Napoleon, Emperor of the French, the vessel was converted into a French military vessel. When the Exchange was forced to call at the port of Philadelphia due to bad weather, the owners filed a libel action in rem against the Exchange for its recovery. France argued that it cannot be brought into the action since the Exchange is part of a military fleet under Emperor Napoleon. The vessel is, by logic, an arm of the emperor and by extension was also entitled to the same personal privileges of immunity enjoyed by the emperor himself. Chief Justice Marshall, speaking for the Court, wrote:

The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself… All exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself.

Schooner Exchange recognizes two important principles of international law: (1) the supremacy of the jurisdiction of the State in matters pertaining to its own territory; and (2) that in recognition of sovereign equality among nations, the United States should be discouraged from compelling France to stand in judgment before the courts of the former for the latter’s conduct—a principle to which Chief Justice Marshall admits of certain exceptions.

Then as now, State consent, whether express or implied, subjects the State to the jurisdiction of tribunals beyond itself. The same consent also operates, to the extent it is given or withheld, as the limitation upon the State’s immunity from jurisdiction. The same exception in Schooner Exchange is more pronounced in the decision of the Canadian Supreme Court in Government of the Democratic Republic of Congo v. Venne:

[N]either the independence nor the dignity of States, nor international comity require vindication through a doctrine of absolute immunity. Independence as a support for absolute immunity is inconsistent with the absolute territorial jurisdiction of the host State; and dignity, which is a projection of independence or sovereignty, does not impress when regard is had to the submission of States to suit in their own Courts. (emphasis supplied).

Admittedly, however, the scope of the exception still falls within the scope of the law of the forum. While there is still a debate as to the proper domain of sovereign immunity, whether it is municipal or international law, D.W. Greig credits the work of the International Law Commission on the draft articles on state immunity as an attempt to firmly place the latter in the sphere of international law.

III. PAINS OF MAJESTY: CONTRADICTIONS AND NECESSITIESIII. PAINS OF MAJESTY:

Marasinghe’s theory of dignity proceeds from the basic premise that a State as a sovereign entity is entitled to the respect of both its citizens and of other States. Therefore, to force it to submit to the jurisdiction of another tribunal, whether international or foreign, would constitute an affront to the high esteem accorded to a State. However, in monarchy, such dignity is necessarily preconceived in the notion of majesty, and an interesting aspect nuances the ordinary formulation of the former in the sense that its object in a monarchical government is usually a single individual who, in theory, wields all sovereignty in and on behalf of the State. The concept of dignity is less complicated in republican systems, where majesty is abstractly held by all institutions of government as a collective, and not necessarily vested in the person of parliament or the chief executive exclusively.

Another peculiar aspect to the majesty of a State as embodied in the person of a monarch is that, in international law, the classic distinction between immunity ratione personae and immunity ratione materiae tends to blur. Immunity ratione personae attaches to the person for as long as he is in office so as to allow the free exercise of diplomatic duties. In the Arrest Warrant case, the International Court of Justice recognizes that “[i]t is firmly established that, as also diplomatic and consular agents, certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal.” The mantle of immunity ratione personae is made to extend not only to acts or omissions connected to the exercise of diplomatic functions, but also to private acts as well. The rationale is that protection is afforded the head of state to encourage diplomacy and develop healthy relations among states. Tunks makes the relevant observation

Head-of-state immunity allows a nation’s leader to engage in his official duties, including travel to foreign countries, without fearing arrest, detention, or other treatment inconsistent with his role as the head of a sovereign state [footnote omitted]. Without the guarantee that they will not be subjected to trial in foreign courts, heads of state may simply choose to stay at home rather than assume the risks of engaging in international diplomacy abroad.

On the other hand, immunity ratione materiae, or functional immunity, attaches not to the person, but to official acts of the State. As Akande notes, “[s]ince this type of immunity attaches to the official act, it may be relied on not only by serving state officials, but also by former officials with respect to official acts performed while in office.” It is the very nature of the act itself which forms the basis of immunity from liability.

Again, a peculiarity arises with respect to royal heads of state, at least in hereditary systems. The nature of a kingly office—a tenure that usually lasts for a lifetime; a person not susceptible to accountability and legal action; the personal embodiment of the State itself—makes permeable the distinction between the aforesaid classes of immunity. Since a monarch usually remains in this capacity for the rest of his life, it becomes nugatory to examine the distinctions between his personal and functional immunities. As a hypothetical example, if a king, regnant for the rest of his life, decides to issue a decree revoking the right of suffrage formerly enjoyed by his subjects, then he is not only immune with respect to actions against his person (for the rest of his life) arising from a constitutional violation of a political right, but is also immune with respect to the legal consequences of the decree should he decide to abdicate the throne.

Be that as it may, it must be recalled that all the peculiarities arising from the office of a king which the law against lèse majesté seeks to protect is inextricably founded upon the person of its holder rather than the institution itself. Thus, the distinction between personal and functional immunity becomes immaterial in the face of the deeply personal nature of the kingly office.

What safeguards exist in international law against abuses committed under the guise of sovereign immunity? The decision of the European Court of Human Rights in al-Adsani v. United Kingdom illustrates a fascinating, if not alarming, aspect of the effect of actions based on violations of jus cogens norms on sovereign immunity, such that “[w]hile recognizing that the prohibition of torture possesses a ‘special character’ in international law, the ECHR rejected the view that violation of such a norm compels denial of state immunity in civil suits.” Stated otherwise, notwithstanding the non-peremptory character of the norm of sovereign immunity, an action based on a violation of a peremptory norm (such as torture in the al-Adsani case) may not prosper because this is a non sequitur. Recognizing on one hand that sovereign immunity is not jus cogens is still insufficient to the attainment of a remedy for violation of a jus cogens norm in the other. This disquisition by the European court polarized its judges into their own separate opinions as to the nature of sovereign immunities before international law:

On the one side, Judges Matti Pellonpää and Nicolas Bratza concurred with the decision and renounced the theory on practical grounds. They reasoned that if the theory were accepted as to jurisdictional immunities, it would also, by logical extension, have to be accepted as to the execution of judgments against foreign state defendants, since the laws regarding execution, like state immunity law, are arguably not jus cogens either.

Consequently, acceptance of the normative hierarchy theory might lead to execution against a wide range of state property, from bank accounts used for public purposes to real estate and housing for cultural institutes, threatening “orderly international cooperation” between states.

On the other side, Judges Christos Rozakis, Lucius Caflisch, Luzius Wildhaber, Jean-Paul Costa, Ireneu Cabral Barreto, and Nina Vajic dissented and advocated resolution of the case on the basis of the normative hierarchy theory. They wrote: “The acceptance … of the jus cogens nature of the prohibition of torture entails that a State allegedly violating it cannot invoke hierarchically lower rules (in this case, those on State immunity) to avoid the consequences of the illegality of its actions.” Thus, the minority concluded that Kuwait could not “hide behind the rules on State immunity to avoid proceedings for a serious claim of torture made before a foreign jurisdiction. (citations omitted)

Now, when majesty as manifest in the form of sovereign immunity comes at conflict with recognized human rights, an existential dilemma is posed on the monarchic State’s own mythmaking. At one end of the spectrum lie the State and its inherent entitlement to create an image of itself and to exact respect for this image. As a matter of necessity, for a State to be able to carry out its own ideals, agenda, duties, and aspirations, it is recognized that only a certain set of individual attitudes are permissible with respect to the image it intends to project. These permissible attitudes, legislated by the State within its own framework of majesty, produce a disciplining effect among individuals, a transgression of which shall constitute an infraction of municipal law. While scholars like Servaes et al. would certainly disagree, arguing that “[p]olicymakers cannot legislate respect, nor can they coerce people to behave respectfully,” the development of laws on lèse majesté is a necessary consequence of compulsory membership in a political association called the State. In the recognition of the necessity of lèse majesté both domestically and internationally, is there a necessary inconsistency with human rights in international law? This author is not prepared to resolve the question in the affirmative.

In the midst of the Cold War, two major instruments outlining human rights entered into force: (1) the International Covenant on Economic, Social and Cultural Rights (ICESR) and (2) the International Covenant on Civil and Political Rights (ICCPR). Do these Covenants purport to impose obligations on States to observe the rights therein set forth? The answer is both yes and no. For one, these Covenants may be construed as the embodiment of ideals sought in human existence; an inherent part of the human desire for improvement. However, “to avoid false generalizations,” and disappointment, “human rights must only be taken for what they are: not a dream of paradise but a tool to limit the power of the State.” On the other hand, Künnemann also submits that if human beings view themselves from an existential standpoint in relation to the State, then certain obligations on the part of the latter set the rules for the satisfaction of such an existential status for citizens. As a consequence, he notes that “every right is actually threefold, consisting of the right itself, the existential status linked to this right, and the State obligations following from this right. The derivations of human rights … are therefore paralleled by specifications in the linked existential status and related obligations.”

If State obligations arise from recognized rights, a breach thereof can be the basis for an action for relief before international tribunals. At the risk of making an oversimplification, it has to be pointed out that immunity as a consequence of majesty is a matter to contend with in seeking redress for violations of rights before all forums, whether domestic, foreign or international. In Prosecutor v. Charles Taylor, former Sierra Leonean head of state Charles Taylor faced indictment for the commission of various international crimes during the Sierra Leonean Civil War. In his defense, Taylor, invoking the immunities of his office, argued that the indictment against him was void since he was still in office, and for inconsistency with the principle of sovereign immunity in international law. In a complete turnaround from the decision of the European court in Al-Adsani, the Special Court for Sierra Leone, relying upon the Statutes of the International Criminal Court, and the Nuremberg and Tokyo war tribunals, rejected Taylor’s argument and ruled that “the principle seems now established that the sovereign equality of States does not prevent a Head of State from being prosecuted before an international criminal tribunal or court.”

In 2002, a class action under the Alien Tort Claims Act and the Torture Victims Protection Act was brought by several plaintiffs before a U.S. federal court against then Chinese president Jiang Zemin and against China’s Falun Gong Control Office.57 The plaintiffs, practitioners of the Chinese spiritual movement Falun Gong, allege that the named defendants had held them in detention for their adherence to the said movement, during which detention the defendants perpetrated acts of torture, genocide, violations of the rights to life, liberty, and security of the person, and impaired their freedom of thought, conscience, and religion. The lower court ordered for the service of process on the Chinese president through any one of his U.S. federal security detail during the Chicago leg of his 2002 U.S. state visit. President Jiang was served, but no reply was received from the People’s Republic of China. Later on, the U.S. impugned the validity of the service of process on the ground of its own sovereign immunity from suit (process was constructively served on President Jiang through his U.S.-provided security personnel) which the U.S. extended to the Chinese president as head of state.

When Jiang left office in March 2003, the U.S. changed its position, and in its comment before the lower court it argued that:

[N]othing in the Alien Torts Claims Act … or the Torture Victim Protection Act … provides a basis for an opportunity by the executive branch to assert its constitutional role over foreign affairs to block private litigation against a former head of state charged with violations of internationally recognizable human rights, especially where the legal standards themselves have been established and confirmed by the United States Congress.

In September 2003, the court upheld the immunities of Jiang as a foreign head of state and, notwithstanding the fact that he no longer was, the plaintiffs had failed to cite any holding by any court that such sovereign immunities for acts de jure imperii during Jiang’s term as president had disappeared upon the conclusion of his tenure. The court also cited Republic of the Philippines v. Marcos which ruled via obiter that head-of-state immunity may not go so far as to render a former head of state immune with respect to acts de jure gestionis.

Notwithstanding the varying views of different tribunals as to the
availability of the defense of sovereign immunity in actions arising from State
acts in breach of international obligations to observe certain rights, more
caution must be taken in upholding the view that sovereign immunities can no
longer be pleaded before international courts. The first consideration, as
Akande suggests, is to look into the provisions of the statute creating the
tribunal. Even as these statutes generally tend to provide for the irrelevance of
official capacity in barring prosecution, he notes that it is crucial “to pay
attention to the manner in which immunity is provided.”61 More importantly,
he writes that:

[T]he possibility of relying on international law immunities (particularly immunity ratione personae) to avoid prosecutions by international tribunals depends on the nature of the tribunal: how it was established and whether the state of the official sought to be tried is bound by the instrument establishing the tribunal. In this regard, there is a distinction between those tribunals established by United Nations Security Council resolution (i.e., the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) and those established by treaty.

Proceeding from the above discussion, the universal membership of the United Nations means that Security Council decisions bind all members of the U.N., and so the provisions of the statutes of the Yugoslavia and Rwanda courts can render sovereign immunity nugatory with respect to practically all States. Again, as Akande observes, this is only because those states are bound by and have indirectly consented (via the U.N. Charter) to the decision to remove immunity. In contrast, since a treaty is res inter alios acta with respect only to the States parties to it, a treaty establishing an international tribunal cannot prejudice the immunities in international law of officials of States not parties to the treaty.

At this point, it becomes instructive to note that the inconsistency of jurisprudence and international law on the matter of sovereign immunity as a defense against prosecution for human rights violations is a recognition that the keeping of laws on lèse majesté is not conclusively anathema to an emerging framework of international human rights. Comparing, for example, the existence in municipal law of both lèse majesté prohibitions and the provisions of the ICCPR, a cursory review would reveal that the former would almost always be present across all legal systems, while the same could not be said of the latter. This is because the presence or absence of ICCPR in municipal law is not a reliable measure of respect for human rights in that State. As an illustration, it must be noted that the ICCPR was placed on a superior footing over domestic legislation on rights at the time of the 1994 genocide in Rwanda, in contrast to Sweden where the ICCPR does not exist in domestic Swedish law. Interestingly, Sweden has one of the world’s most impressive records in human rights. At most, what the incorporation of the Covenant into domestic law achieves is to clear away some of the bars to the achievement of respect for the provisions of the ICCPR, but it is no guarantee of respect for those provisions.

As a consequence of its being a human organization, the State, fraught with the frailties of any human individual, has had to project a suitable image of itself for its own survival. Whether a State has the right in international law to the unadulterated image of itself or to the fabrication of its own myths at the expense of human rights can be the subject of intense debate, but affirmatively or otherwise, the portrayal of its majesty in the manner of its own choosing just is.

On the other hand, the State is also a sovereign entity. In monarchy, State sovereignty and its other manifestations coincide, in theory at least, in the body of a single person. Thus, increasingly, in the forward strides taken in the field of human rights, the monarch necessarily becomes an easier object of critique. However, a shift in the conception of sovereignty must also be taken into account. In this regard, Reisman observes:

International law still protects sovereignty, but—not surprisingly—it is the people’s sovereignty rather than the sovereign’s sovereignty. Under the old concept, even scrutiny of international human rights without the permission of the sovereign could arguably constitute a violation of sovereignty by its “invasion” of the sovereign’s domaine réservé. The United Nations Charter replicates the “domestic jurisdiction-international concern” dichotomy, but no serious scholar still supports the contention that internal human rights are “essentially within the domestic jurisdiction of any state” and hence insulated from international law.

In the Tinoco arbitration, Chief Justice Taft decided that the standard of effective control sufficed to find that the government Tinoco represented is the legitimate government of Costa Rica, without due regard to popular sovereignty as manifest in the Costa Rican Constitution. Reisman suggests that this would be an anachronistic ruling if decided at present, but back in 1923, the Tinoco arbitration did not raise any eyebrows.

However, in monarchy, the abstraction of the nation and of sovereignty are given a physical incarnation. Wrote Yack on Hegel: “…the rational state was possible because, given the constitution and underlying spirit of the modern European states that he knew, monarchy offered a concrete political means of depersonalizing the politics of the state.”67 Upon this premise, the legal historical development of monarchy, at least in Europe, gave way to the reconciliation of the subjective freedom of individuals (right) with the free and rational direction of public affairs (government).

In sum, the law on lèse majesté remains as an indissoluble part of
traditional concepts about the State and sovereignty which, while being slowly relegated into irrelevance by developments in international law, keeps constantly resurfacing each time the State reinforces its image of itself upon its citizens and among other States with respect to human rights.

**The author is a senior student at the University of the Philippines College of Law. He earned his B.A. (Political Science), magna cum laude, from the same university in 2009. This Note was originally written as a student paper for the author’s Public International Law class under Dr. Diane A. Desierto during the First Semester of A.Y. 2011-2012 .

1 Literally, “injured majesty.” It is defined as a crime against the state, especially against the ruler, or an attack on a custom or traditional belief [BLACK’S LAW DICTIONARY (8th ed. 2004)].

2 Rep. Act No. 8491 (1998). Section 50 thereof punishes these acts with a fine of up to PhP20,000.00 and/or imprisonment of not more than one year upon the court’s discretion.

3 This is the default status of all British colonies upon independence.

4 To this day, sixteen states remain Commonwealth Realms, each recognizing Queen Elizabeth II as head of state: Australia, Antigua and Barbuda, The Bahamas, Barbados, Belize, Canada, Grenada, Jamaica, New Zealand, Papua New Guinea, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Solomon Islands, Tuvalu and the United Kingdom.

10 Despite the fact that the institution headed by Elizabeth II based primarily in the United Kingdom should be more properly referred to simply as the Monarchy, for purposes of political correctness across all Commonwealth realms, in this Note the author takes the liberty of referring to the institution, for convenience, as the British monarchy.

14 Statute of the International Criminal Court, art. 27: (1) This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence; (2) Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

29 Somchai Preechasilpakul and David Streckfuss, Ramification and Re-Sacralization of the Lèse Majesté Law in Thailand, delivered at the 10th International Conference on Thai Studies (January 9-11, 2008).

30 Royal Edict of 1900, Section 4 provides “[w]hosoever defames the reigning king of Siam or the major concubine, or the princes or princesses…with intemperate words which may clearly be seen as truly defamatory, this person has acted illegally.”

58 Id., Brief of Amicus Curiae Relating to Issues Raised by the United States in its Motion to Vacate October 21, 2002, Matters and Statement of Interest or, in the Alternative Suggestion of Immunity, at 4 (June 9, 2003).

59 806 F. 2d 344, 360 (1986).

60 For a useful discussion of the distinctions between acts de jure imperii and de jure gestionis, please refer to footnote 23 in Abigail Hing Wen, TSuing the Sovereign’s Servant: he Implications of Privatization for the Scope of Foreign Sovereign Immunities, 103 COLUM. L. REV. 1538,1542 (2003).

THE INHERENT DIFFICULTY OF ART: AN ANALYSIS OF ARTISTIC EXPRESSION AS A FUNDAMENTALLY PROTECTED RIGHT

Each piece of art begins with an idea emerging from the depths of the artist’s psyche. It is a by-product of a creative process that initiates in the mind and is ultimately manifested in the artwork. A work of art is, therefore, necessarily an extension of its maker. As such, art is also fundamentally abstract—initiating from the metaphysical and later evolving into a physical expression perceivable by other people who, as a consequence of this act, form their own ideas, which may or may not agree with it. The beauty of art is that the mental process does not end with the artist’s piece. Rather, from this physical portrayal, another train of thought centered on the metaphysical is triggered anew. This interplay between the concrete and the abstruse is what contributes to the mystique, as well as the immense difficulty of art as an object of judicial review.

When Justice Holmes and Justice Brandeis, two of the most progressive and learned members of the U.S. Supreme Court, dissented in the 1925 case of Gitlow v. People of New York, they acknowledged that ideas offer themselves to the public. Thus, there can be two possible reactions: first, for it to be believed (and thus acted upon), or second, that of disbelief (where some other belief outweighs it). The latter is a consequence of what they labeled as “a failure of energy that stifles the movement at its birth.” In modern Philippine Constitutional parlance, this stifling act could be interpreted as prior restraint and to an extent subsequent punishment (insofar as it creates a chilling effect on others engaged in similar artistic endeavors). It is precisely this “stifling energy” that tends to smother rather than nurture the development of artistic ideas that the libertarian principles enshrined in Art. III of the 1987 Constitution seek to prevent—after all, “ideas are bulletproof.” It is with these in mind that one ought to approach the experience of Kulô when it was first displayed in the Cultural Center of the Philippines (CCP); the circumstances that led to its eventual withdrawal by the CCP’s board in what can be considered as the perfect embodiment of “heckler’s veto” at work.

Kulô and Poleteismo

In 2011, the CCP featured Kulô, a group exhibition of 32 artists, which included the works of Mideo Cruz from the University of Santo Tomas (UST). Cruz’s exhibit, entitled Poleteismo, quickly became the most controversial piece in the collection, eliciting harsh condemnation from Catholic and Christian groups, as well as a number of prominent politicians. The images incorporated in Cruz’s Poleteismo were like kindling that fed the uproar following its display:

1. a wooden replica of a penis attached to the image of Jesus Christ,
purporting to be a nose
2. a crucifix draped with a stretched out condom
3. juxtaposition of religious icons and posters of lingerie models
4. a statue of Christ vandalized with facial features purporting to
resemble Mickey Mouse
5. a poster image of Christ with black ink, simulating tears

The entire exhibit itself is a collage of mixed-media, and though the unifying idea of these items includes the conjunction of Christ’s image with phallic symbols, a significant space is also devoted to several facets of popular culture and their artistic disfigurations. Cruz has said that his work studies the worship of relics and explores the evolution of idolatry in modern culture.

The controversial images were not the central or core feature of the exhibit as the spectator is presented with a wide array of artworks and is hardly directed to a specific focal piece. Nevertheless, the presence of the aforementioned works caused religious groups and citizens’ organizations to label the Poleteismo exhibit as “blasphemous” and “sacrilegious.” Immense pressure was placed on the CCP Board to close down the exhibit as criticism of the contents of Cruz’s grew significantly. The ensuing days would prove too much for the leadership of the CCP.

On August 2, some UST alumni visited the CCP, urging them to immediately close down the exhibit in 48 hours or otherwise face legal consequences. On the same day another religious group, Pro-Life Philippines, sent a letter to the CCP and the artists involved demanding the same, giving August 4 as their deadline. On August 4, unidentified vandals defaced several exhibits including Cruz’s Poleteismo. Former First Lady Imelda Marcos, an incumbent member of the House of Representatives, found the exhibit offensive and appealed to the Board for its withdrawal.

Overwhelmed by the largely negative public response, the CCP management decided to close down the Main Gallery from the public on August 9, citing the multiple threats to persons and property. Mideo Cruz and ten officials of the CCP were charged criminally by lay Catholic groups, citing as basis Article 201 of the Revised Penal Code on immoral doctrines, obscene publications and exhibitions and indecent shows.

Concerned Artists of the Philippines and National Artist Bienvenido Lumbera, as well as several artistic groups from the University of the Philippines (U.P.), communicated their support for the artwork and protested against the exhibit’s closure. Curiously, there were reports that Poleteismo had in fact been shown publicly since 2002 in various galleries including universities such as U.P. and Ateneo.

As a result of the brewing controversy, the Senate invited the artist and officials of the CCP in a legislative inquiry headed by Senator Edgardo Angara, Chairman of the Education, Arts and Culture committee.

The debate that ensued in numerous legal, academic and religious circles was not insignificant. On one side, the majority, or those who cried foul at the obscenity and grave abuse of the freedom of expression considering the work an affront to their religious sensibilities; on the other side, the minority, who decried how the narrow-minded view of the mob had smothered these freedoms, especially that of artistic expression.

It is with the foregoing factual antecedents that this paper endeavors to extract the root cause of the difficulty that surrounds the controversy’s main focus: art. It is the author’s submission that art in itself is ambiguous, complex, and ultimately impossible to examine in a vacuum as an isolated phenomenon. In no way can art be examined objectively or at a distance. Thus, there is no such thing as a neutral judge, perched atop his ivory tower, applying the law as a detached and impartial magistrate would. Art, by its very nature, reduces him to an individual-molded by the social norms that he was brought up with and influenced by his experiences.

I. LEGALLY PROTECTED RIGHTS TO FREE SPEECH AND THE FREEDOM OF EXPRESSION

This is True liberty, when free born men
Having to advise the public may speak free
Which he who can, and will, deserves high praise.
Who neither can, nor will, may hold his peace;
What can be Juster in a State than this?

– Euripid

A. Freedom of Speech and Expression Protection in the Philippine Democratic Context

No less than the fundamental law of the land declares the significance of this right, as Section 4 of the Bill of Rights of the 1987 Constitution states that “[n]o law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.”

The Bill of Rights is a declaration of largely broad normative rules that the Drafters of the Constitution deemed of utmost importance, according upon the rights therein enumerated the status of considerable significance. The right to free speech and freedom of expression are, in the hierarchy of rights, given an even higher rank. As aptly stated by Justice Carpio in his dissenting opinion in the fairly recent case of Soriano v. Laguardia, “[a]ll of the protections expressed in the Bill of Rights are important, but the courts have accorded to free speech the status of a preferred freedom.”

It is worthy to note that the Philippine Supreme Court was one of the first to ever rule on the freedom of speech, preceding its American counterpart by more than three decades. The Court speaking through Justice Malcolm in U.S. v. Bustos in 1918 held that though libel may be beyond the ambit of constitutional protection, courts in the exercise of their mandate to ascertain whether the elements of such an offense are attendant, should be “ever mindful that no violation of the right of freedom of expression is allowable.”

The importance of protecting this freedom becomes all the more evident in light of libertarian democratic principles. Historically, democracy has, both as an ideological construct and a system of government, survived and outlived almost all other forms of government—to the point that some scholars in political discourse have already heralded its “triumph.”

This is largely attributable to the legitimacy that the system derives from its constituents. Thus there exists a quid pro quo between democracy and the individual. Democracies give primacy to the fortification of the individual’s rights and in return the individual bestows legitimacy in the democratic government, bridging the divide between the ideological and the practical.

In the discourse on democratic legitimacy vis-à-vis the guarantees of free speech in the legal academe, scholars have acknowledged the merits of this “bridge.” Ward identifies three most prominent claims in guaranteeing free speech:

The first claim assumes that guarantees of free speech are a condition of political legitimacy, because they ensure that the government treats citizens with the respect that human beings deserve. A second claim conditions political legitimacy on benefits citizens receive when the government guarantees free speech. It contends that these benefits compensate for any coercion suffered through the exercise of governmental authority. Guarantees of free speech allow citizens to accept political authority. They ensure that citizens have a tighter rein on their representatives, and they contribute to a political environment that enhances citizens’ deliberations about particular interests. A third claim bases legitimacy on citizens’ desire to strengthen their character, a desire that citizens express when they endorse principles of free speech. (emphasis supplied)

In the protection of the fundamental right to free speech, the enrichment of ideas through diversity should always be preferred to censorship. Thus, the ubiquitously quoted ambition of fostering the proverbial “marketplace of ideas” is not entirely alien to the idea of protecting free speech as in fact the former is the endeavored result of the latter.

In socio-democratic thought, the ideal sought for is the recognition that the minority is as important as the majority, i.e. the idea of power being singly held by a dictator or an elite few, as in an oligarchy, is just as abhorrent as government by a tyrannous majority swayed by the rule of the mob. To paraphrase one scholar, the very essence of freedom is not found in protecting simply the minority that wants to talk, but more importantly, by limiting the abuse of rights by the majority that refuses to listen.

Democratic governments are mandated by the very social contracts in which they are grounded to develop a veritable cesspool of diverse thought, one that the government may itself participate in. While governments are not given a free hand to influence public debate by suppressing private speech, it is allowed to participate in the marketplace of ideas and to voice its own point of view in that marketplace in order to influence the course of public debate. Furthermore, Ward adds that this may also constitute a check on governmental power in that:

Free speech checks governmental power: It ensures that representatives direct their energy toward advancing the public good rather than particular interests. It also forces representatives to consider their constituents’ particular interests as well as their own. Thus, free speech is a precondition for legitimate democratic government. It advances a collective interest in promoting good legislation. Representatives will perform better if they must strive to satisfy the expectations of informed.21 (emphasis supplied)

A democratic government that places paramount importance in affirming its liberal as well libertarian character towards freedom of expression and speech has a stronger claim of legitimacy. Indeed the pedestal in which the freedom of expression is placed in Philippine law comes from the fact that it is integral to the exercise of almost every other right.

B. Freedom of Speech and Expression as Protected in International Law

Under international law the rights to freedom of expression is fundamentally guaranteed by the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). The UDHR, unlike the ICCPR, is a non-binding document, however, it has already attained the status of custom and, as a consequence of customary international law, largely been accepted by states. The duty of the Philippine Government becomes all the more vital since it has signed and ratified the ICCPR. Article 19 states:

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of
his article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals. (emphasis supplied)

By virtue of the Incorporation clause in the Constitution, this mandated duty becomes glaring, hence:

Section 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. (emphasis supplied).

It is beyond cavil therefore that the right to express one’s self freely finds protection in both the international and local realms. Thus in the ICCPR, the only ground for validly restricting the right is solely when there is legislative fiat necessary to respect the rights or reputations of others or to protect national security or public order.

Undeniably, there are, in the Philippine context, sufficient safeguards present in both international and domestic realms for the protection of these fundamental rights. The question that arises is: why, then, is there such an immense difficulty when it comes to legally dealing with art, specifically, those works that offend the religious sense? Why have not the laws or the courts been able to appease the growing divisiveness between those proponents and opponents of censorship with such effectiveness as in common legal issues?

II. THE UNIQUENESS OF ART

The dilemma with the protection of art as free speech stems from its very fluid and often arbitrary nature, exacerbated by the lack of one truly legal standard of what art is. What is art at one period in history may not be so in the next. Consequently, what was considered lewd, offensive, and obscene in the past would probably not have been as appalling at present. To compare, for instance, the social mores that governed Elizabethan society and that which now pervades modern day England would be an amusing, if not comical, exercise. The perception of art changes through time. Justice Sarmiento writes:

What shocked our forebears, say, five decades ago, is not necessarily repulsive to the present generation. James Joyce and D.H. Lawrence were censored in the thirties yet their works are considered important literature today. Goya’s La Maja desnuda was once banned from public exhibition but now adorns the world’s most prestigious museums.

The morality that governs one era is not necessarily carried on to the next as the significant socio-political changes which that particular age undergoes affect not just socio-political structure, but more importantly, the social mindset. Had the Renaissance in Medieval Europe, or the French and American Revolutions, never happened, one could surmise that present norms of perception would be drastically different. Time is determinative of the morals that dominate society.

The social dictates of the modern era are so radically different now that the evolution of art has reached a level where the effect on the viewer is given as much importance as the aesthetic content. Shock is increasingly being considered a legitimate response to an artwork in more progressive societies. In New York, for instance, an emerging strain of burlesque—unofficially labeled noveau burlesque—mixes sexual shock value with certain elements of burlesque. It is amusing to note that burlesque itself had undergone a redemption of sorts, being viewed now as an art form—a variation of dance— and a far cry from its roots as adult entertainment. Author Salman Rushdie describes it perfectly when he said that “[o]nce the new was shocking, not because it set out to shock, but because it set out to be new. Now, all too often, the shock is the new. And shock, in our jaded culture, wears off easily.” Rushdie himself is not unfamiliar with the effects of offensive art—once being the subject of a fatwa for earning the ire of fundamentalist Muslims for his work.

Then there is always that all-encompassing phrase of “art for art’s sake.” At the socio-political level of analysis, art, in itself, already poses a distinct dilemma. This becomes all the more problematic at the level of legal scrutiny as the latter is generally confined to the rigid interpretation of the law; in fact, where the letter of the law is unambiguous and categorical, the answer is inevitable if not perfunctory—apply the law, no matter how harsh. Dura lex sed lex. This rigidity juxtaposed with the volatility that characterizes art leads to the conundrum that courts are faced with when dealing with this subject matter. Eberle, in discussing on the “uniqueness” of art as approached from a legal perspective, pinpoints these varying unique traits, thus:

First, art is special because it partakes of the creative process central and unique to human existence. Second, art provides an avenue to dimensions of human life less accessible by ordinary rational or cognitive processes. Art is a portal to nonrational, non-cognitive, nondiscursive dimensions to human life, offering a fuller conception of the human person. Third, art functions as a private sphere of freedom not subject or susceptible, on the whole, to the normal rules of society.(emphases supplied)

The law, for it to be an efficient mechanism for stability, must itself be stable, i.e., it must possess a certain sense of consistency relinquished only in instances where a grave injustice may result. Hence principles such as stare decisis et non quieta movere and res judicata are considered hornbook law doctrines that warrant compliance. Herein lies the fundamental dilemma of analyzing art as a constitutionally protected fundamental right—it is not stable. Law and jurisprudence cannot keep up with the constant state of flux that the artistic realm is in—to adapt to it with an equal pace is impossible to do. Moreover, usual constraints on the power of judicial review, such as the presence of a valid case or controversy and the political question doctrine, can work against progressive development in the law as judges are more likely to engage in judicial restraint than be chastised for engaging in judicial activism. Stated otherwise, the judiciary’s hands are tied.

A Conundrum Compounded: Religiously Offensive Art and Judicial Review

Speaking again of the trend among modern artists to see shock as a legitimate reaction to art form, Rushdie notes: “[s]o the artist who seeks to shock must try harder and harder, must go further and further, and this escalation may now have become the worst kind of artistic self indulgence.” Indeed the limit of social tolerance of what is to be considered offensive has never been stretched by any other sector of society. That these artists have offended, however, does not remove them from the ambit of the Constitution’s protective mantle for the law values the freedom not just “for those that agree with us but freedom for the thought that we hate.” This is the very essence of democracy.

It is in the “creative” step, from the mere aesthetically offensive form of artistic expression to the much more controversial “morally offensive,” or so called “blasphemous” art, that the difficulty in legal analysis is aggravated. Present in the Kulô situation are the ingredients for the perfect storm: art and religion. There is, consequently, a compounding of complexities as the judge is now not only asked to determine what is acceptable as a legitimate form of art, he is also required to take into context whether it is not also offensive to the moral sentiments of the religious—a circuitous exercise, as what may be blasphemous for one may not be so for another. This two-pronged dilemma is not confined solely to the theoretical; rather it also has serious legal, as well as socio-democratic repercussions. Should the judiciary undertake this “task,” it would be establishing a legal standard of what is to be deemed “religiously offensive,” one that forms part of the laws of the land. By coming up with such ruling, the Supreme Court would effectively be promulgating a blasphemy law—an indirect circumvention of and affront to the democratic principle of separation between Church and State.

The dearth of rulings by the Supreme Court on what could be considered religiously offensive artistic expression contributes significantly to the analytical predicament previously discussed. As of writing, there has yet to be a ruling that squarely addresses the issue of what could be considered religiously offensive. Perhaps the closest that the Court got to coming up with a standard is in obscenity cases, although the analysis is confined only to the level of the aesthetic, and does not really delve deeper into what is morally and religiously offensive. The struggle that the Court faced in coming up with a satisfactory formulation of what to consider obscene is readily apparent in its pronouncements. One could note, rather amusingly, the language in which the Justices themselves expressed their frustration in the absence of a clear-cut standard for obscenity.

The earliest word on the matter was laid down by no less than Justice
Malcolm himself nearly a century ago in the case of People v. Kottinger decided in 1923 where obscenity was defined as that which is offensive to chastity, decency or delicacy. The test to determine obscenity is “whether the tendency of the matter charged as obscene, is to deprave or corrupt those whose minds are open to such immoral influences and into whose hands a publication or other article charged as being obscene may fall.” Another test laid down by the same case is where it is “that which shocks the ordinary and common sense of men as an indecency.” Furthermore, Kottinger was careful in adding that whether the picture there was to be considered obscene or not would depend: 1) on the circumstances of the case; and 2) on the aggregate sense of the community reached by it.

A few decades after, the Court once again had opportunity to pass
upon the issue in the cases of People v. Go Pin decided in 1955, and People v. Padan, decided in 1957. Both cases dealt with prosecutions involving Article 201 of the Revised Penal Code targeting the authors, publishers and sellers of obscene publications. The tests prescribed therein were, unfortunately, of little help in narrowing down the general rules set by Kottinger.

In Go Pin the Court made the purpose for which the pictures were being shown as determinative of obscenity, holding that:

If such pictures, sculptures and paintings are shown in art exhibits and art galleries for the cause of art, to be viewed and appreciated by people interested in art, there would be no offense committed.However, the pictures here in question were used not exactly for art’s sake but rather for commercial purposes. In other words, the supposed artistic qualities of said pictures were being commercialized so that the cause of art was of secondary or minor importance. Gain and profit would appear to have been the main, if not the exclusive consideration in their exhibition.

Padan reiterated the standard set by Go Pin, supplementing it with the “redeeming feature” element, thus:

[A]n actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no redeeming feature. In it, there is no room for art. One can see nothing in it but clear and unmitigated obscenity, indecency, and an offense to public morals, inspiring and causing as it does, nothing but lust and lewdness, and exerting a corrupting influence specially on the youth of the land.

The 1985 case of Gonzales v. Kalaw Katigbak applied the “contemporary community standards” of Kottinger, but was distinct from the rulings of Kottinger, Go Pin, and Padan in that the Court examined obscenity in terms of the “dominant theme” of the material taken as a “whole” rather than its isolated passages. The test then was “whether to the average person, applying contemporary standards, the dominant theme of the material taken as a whole appeals to prurient interest.”

The Court’s 1989 decision in Pita v. Court of Appeals involving alleged pornographic publications acknowledged Kottinger’s failure to come up with a definition of obscenity. In the words of Justice Sarmiento:

Kottinger, in its effort to arrive at a “conclusive” definition, succeeded merely in generalizing a problem that has grown increasingly complex over the years. Precisely, the question is: When does a publication have a corrupting tendency, or when can it be said to be offensive to human sensibilities? And obviously, it is to beg the question to say that a piece of literature has a corrupting influence because it is obscene, and vice-versa.

He correctly pointed out the inherent flaws of the standards also set in Padan and Go Pin, thus:

Padan y Alova, like Go Pin, however, raised more questions than answers. For one thing, if the exhibition was attended by “artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes,” could the same legitimately lay claim to “art[?”] For another, suppose that the exhibition was so presented that “connoisseurs of [art], and painters and sculptors might find inspiration,” in it, would it cease to be a case of obscenity?

Padan y Alova, like Go Pin also leaves too much latitude for judicial arbitrament, which has permitted an ad lib of Ideas and “two cents- worths” among judges as to what is obscene and what is art.

Interestingly, the Court in Pita does not proceed to come up with its own definition or standard of obscenity. Rather, it resorts to the clear and present danger rule to address the issue of whether State interference was warranted. The Court’s attitude in Pita, tending towards an avoidance of its task of procuring a sufficient standard for obscenity, was reiterated, if not immortalized in the 2006 case of Fernando v. Court of Appeals. Justice Quisumbing echoed perfectly Justice Sarmiento’s sentiment pointing to this difficulty, viz:

The Court in Pita also emphasized the difficulty of the question and pointed out how hazy jurisprudence is on obscenity and how jurisprudence actually failed to settle questions on the matter. Significantly, the dynamism of human civilization does not help at all. It is evident that individual tastes develop, adapt to wide-ranging influences, and keep in step with the rapid advance of civilization. It seems futile at this point to formulate a perfect definition of obscenity that shall apply in all cases. (emphasis supplied)

At this point it would be helpful to engage in a hypothetical situation where, by some chance, a case as divisive and furor-inducing as the one involving the Kulô exhibit at the CCP is brought before the Supreme Court. One can only imagine the proceedings in the deliberations among the justices themselves after the termination of oral arguments. It would not be farfetched to surmise that the ostensibly united Court will be reduced to war between beliefs. The oft-quoted truism that the life of the law is experience comes to fore, as Justices will be forced to make very personal choices based on their internal biases, for few questions can be as discordant as: what is art, and when is it protected by the Constitution?

The typical response of any judge, practitioner, professor or student of the law to the latter question would be to automatically trigger the “clear and present danger test” so prolifically reiterated by the Supreme Court whenever faced with cases of this nature. Hence, in constitutional parlance, limitation on the fundamental freedom is warranted where they are “of such a nature as to create a clear and present danger that they will bring about the substantive evils that the lawmaker has a right to prevent.” This would seem the constitutionally sound response to the legal with which it is faced. However, taking the analysis a step further, it is can be said that there is really no concrete risk of harm to individuals or society that art poses. Frankly, the only “danger” incurred is simply observation of the messages that the piece attempts to convey —a message that is in essence the very form of free speech that the Constitution seeks to protect. There consequently arises the question as to whether the application of the clear and present danger rule would be proper in cases involving religiously offensive art.

CONCLUSION

It cannot be gainsaid that the 1987 Constitution, in its Bill of Rights, accords rights to free speech and expression the status of “preferred freedoms.” However, there persists a dilemma in dealing with such freedoms when analyzed vis-à-vis the concept of art. This inherent difficulty is based on the innate nature of art as an essentially abstract concept, and on the inadequacy of the law to adapt to this nature. The Courts are thus rendered helpless.

In coming up with a decision on a burning issue such as whether or not to uphold the censorship of blasphemous or religiously offensive art, courts are left in deciding which of two social desires would be given primacy over the other. Thus the judicial dilemma that arises in the legal analysis of art brings back the oft-quoted truism of Justice Holmes’ that the life of the law is experience. This is true also for his conception of the fallacy of logical form, since by its very essence the artistic problem cannot be limited to the confines of legal syllogism. Rather it is one that necessitates the drawing of biases from the well that is the judge’s mind. Thus, he or she does not decide in an intellectual vacuum but is affected by internal as well as external factors. In this matter there is no Supreme Court, only the Supreme Court Justice.

To quote Eberle:

The absence of a convincing theory for the status of art speech as protected speech likely leads to the form’s underestimation. Art speech is often not valued for the uniqueness and worth it possesses. For example, art can appeal to sensory, subliminal, emotional or other non-cognitive dimensions of human life, instilling inspiration, rapture or disgust. Art can be beautiful or ugly. Or art can be soothing or arresting. But these qualities of art can be missed when no solid rubric exists upon which to evaluate art speech as protected speech because it is art.

If the Supreme Court has seemingly given up on establishing a steadfast legal standard as regards obscenity (as shown in Pita and Fernando), all the more will it wilt if faced with the daunting, if not impossible, task of establishing one for religiously offensive art. There is again that two-pronged difficulty of analyzing religion and art within purely legal strictures; the complexity of art entrenched in its very essence and nature, aggravated by religious sentiment, which is also, in and of itself, a separate complication altogether. There exists, therefore, similarity between the beholder and the believer; that he adheres to the message of the medium, be it art or religion, is ultimately something that cannot be taken from him, an act or choice that is entirely personal; and it is this quintessential freedom that democracy protects from encroachment by the overbearing majority.

– o0o –

* Cite as Nathan J. Marasigan, Feature, The Inherent Difficulty of Art: An Analysis of Artistic Expression as a Fundamentally Protected Right, 86 PHIL. L.J. 971, (page cited) (2012). This article is an expanded version of the paper awarded First Place in the PHILIPPINE LAW JOURNAL’s 2011 Editorial Examination. The author wishes to acknowledge Mary Rhauline dG. Lambino, Editors Darwin Angeles and Sandra Mae Magalang, as well as Intern Russell Stanley Geronimo for their invaluable help in the editing of this article. He also expresses his gratitude to Mrs. Elayda Caballes Marasigan (his very first editor) for encouraging his writing and Mrs. Lydia Bradbury Jaban for being ever supportive of his study of the law.

** Chairman, PHILIPPINE LAW JOURNAL (2011; Member, 2010); Violeta Calvo-Drilon ACCRALAW Scholar for Legal Writing; J.D. University of the Philippines College of Law (2012); B.A. Political Science, University of the Philippines (2008).

33 Raul C. Pangalangan, Freedom for the Thought We Hate, INQUIRER.NET, August 11, 2011, available at http://opinion.inquirer.net/9801/%E2%80%98freedom-for-the-thought-we-hate%E2%80%99 (last accessed: July 17, 2012).

34 G.R. No. L-20569, 45 Phil. 352 (1923).

35 Id.

36 Id.

37 Id.

38 G.R. No. L-7491, 97 Phil. 418 (1955).

39 G.R. No. L-7295, 101 Phil. 749 (1957).

40 REV. PEN. CODE, art. 201, as amended by Pres. Dec. Nos. 960 and 969, provides: Immoral doctrines, obscene publications and exhibitions and indecent shows. — The penalty of prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment and fine, shall be imposed upon: (1) Those who shall publicly expound or proclaim doctrines openly contrary to public morals; (2) (a) the authors of obscene literature, published with their knowledge in any form; the editors publishing such literature; and the owners/operators of the establishment selling the same; (b) Those who, in theaters, fairs, cinematographs or any other place, exhibit, indecent or immoral plays, scenes, acts or shows, whether live or in film, which are prescribed by virtue hereof, shall include those which (1) glorify criminals or condone crimes; (2) serve no other purpose but to satisfy the market for violence, lust or pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law, public order, morals, and good customs, established policies, lawful orders, decrees and edicts; (3) Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals.

53 See BERNAS, CONSTITUTIONAL RIGHTS AND SOCIAL DEMANDS: NOTES AND CASES, PART II, 406(2004). Bernas raises the question of whether the application of the clear and present danger rule by the Court in Pita v. Court of Appeals was proper.

OF ART, FREEDOM AND POLETEISMO

…[B]ut if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.1
– Justice Oliver Wendell Holmes,Dissenting opinion in U.S. v. Schwimmer,
279 U.S. 644.

Art is a form of expression. As such, it is constitutionally protected and anything that stultifies it is proscribed. But do all art and other modes of expression, even as they make a mockery of religious symbols, fallabsolutely within the purview of the protection of freedom of speech and expression? What then is the limit of the constitutional guarantee of freedom of speech and expression in relation to the freedom to exercise religion? This article seeks to answer this fundamental question, drawing from the brouhaha caused by the Kulô art exhibit in the Cultural Center of the Philippines (CCP).2

The first part of this article will outline the basic facts from which the controversy arose and the reactions this issue elicited. It follows with a narration of jurisprudence recognizing the right to freedom ofspeech and expression and the parameters by which speech is adjudged to fall within the ambit of legal protection.

The next part of this paper will endeavour to apply these jurisprudential tests in relation to the alleged offensive art. Using the result of this analysis, it will build on the thesis that, art, even in its multifarious and eccentric forms, as a form of speech and expression, enjoys a preferred freedom that may only be defeated after passing a regimen of strict scrutiny test. Rather than condemning the author and censuring the same, this form of expressions should be cultivated to test the ideas and ideologies, which the society, since time immemorial, has forced on us to treat as moral and sensible.

What Happened?

In commemoration of Jose Rizal’s 150thbirthday, the CCP held an art exhibit called Kulô to honor and showcase the works of Filipino artists. Among those included in the exhibit were Poleteismo, a series of art works created by Mideo Cruz, which started the whole controversy.

The members of the Catholic community took immediate action in rallying support for their cause in removing the alleged sacrilegious and perverse art. They found the Poleteismo particularly degrading and offensive to their religious feelings due to the insulting treatment and the shocking disrespect with which the art used the images of the cross, Jesus Christ, and the Virgin Mary.3 Senator Jinggoy Estrada manifested his support with uncharacteristic alacrity in a privilege speech delivered before the Senate, lambasting the officials of CCP for allowing the art to be exhibited in that forum.Following this, more members of the Congress joined the fray and even threatened to cut the budget of CCP, while the President opted to reprimand its Board Members. The Catholic church and its lawyers reacted by filing suits against Cruz and the CCP Board Members for allegedly offending religion.4 Others similarly affronted resorted to vandalism and continuous threats of violence against the CCP.5

On the other side of the spectrum, the CCP, in its press statement claimed that even as the art works initially offended some of their members, it forced them to pause and think critically of how the purported message affects the psyche:

Even among us in the art world, many were offended when we first viewed Poleteismo. But it served as an awakening. It roused our senses, challenged us to take a deeper look, woke us up to a less innocent world: What is the artist trying to say? Why am I reacting this way? Should I be angry? Or should I be more introspective? Should I judge the art work for what I see on the surface or should I try to understand what it is doing to affect me?Passion for Reason: ‘Freedom for the thought we hate’, Aug. 16, 2011, available at http://opinion.inquirer.net/9801/%E2%80%98freedom-for-the-thought-we-hate%E2%80%99(date last visited: May 24, 2012).”>7

Freedom of speech as constitutionally-protected right

The Philippine Constitution provides that no law shall be passed abridging the freedom of speech, of expression, or of the press.8 It further provides that the State shall foster the preservation, enrichment, and dynamic evolution of a Filipino national culture based on the principle of unity in diversity in a climate of free artistic and intellectual expression.9(emphasis supplied)

In areas of protected freedom, it is axiomatic that a regulation that limits the enjoyment of the protection may only be sustained after passing through a strict scrutiny test. This is in recognition of the people’s constitutionally-protected right and the myriad of possibilities by which this right is susceptible to curtailment. Thus courts have been increasingly adamant in defending the vanguards of free speech and expression and in preventing a chilling effect on the free intercourse of debates.

In judging whether a state regulation infringes on the protected area of speech, jurisprudence provides various tests by which this matter may be judged. The first of these tests provides that the regulation must only relate to the time, place and manner of expression and not specifically on the message or content conveyed. Thus, using this test, the court has held that the requirement of a permit to hold a rally is a permissible state regulation within the police power of the State:

The right to freedom of speech, and to peacefully assemble and petition the government for redress of grievances, are fundamental personal rights of the people recognized and guaranteed by the constitutions of democratic countries. But it is a settled principle growing out of the nature of well-ordered civil societies that the exercise of those rights is not absolute for it may be so regulated that it shall not be injurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the community or society. The power to regulate the exercise of such and other constitutional rights is termed the sovereign “police power.”10 (emphasis supplied)

In Hill v. Colorado, the US Supreme Court held that a regulation prohibiting a person from knowingly approaching within eight feet of another person near a health care facility without the latter’s consent is a valid time, place and manner regulation.“>11 Nor is this practice a prior restraint on speech since the regulation was aimed at those who give leaflets, counsels or advice to persons near a health care facility without regard to the content of their speech. There was thus no restraint on a particular kind of message that would justifiably offend the areas of protection.12

The clear and present danger test is another tool by which the court determines whether a certain speech is constitutionally-protected. This involves determining whether the speech sought to be prevented presents a clear and present danger of an evil of a substantive character that the State has a right to prevent.

In Navarro v. Villegas,13 the Court opined that the decision of the Mayor of Manila to permit the holding of a rally in the Sunken Gardens as an alternative to Plaza Miranda is a permissible State regulation in light of the clear and present danger that assemblies such as the one sought to be held by petitioners in the case, inevitably brings:

[E]xperiences in connection with present assemblies and demonstrations do not warrant the Court’s disbelieving respondent Mayor’s appraisal that a public rally at Plaza Miranda, as compared to one at the Sunken Gardens as he suggested, poses a clearer and more imminent danger of public disorders, breaches of the peace, criminal acts, and even bloodshed as an aftermath of such assemblies, and petitioner has manifested that it has no means of preventing such disorders;

That, consequently, every time that such assemblies are announced, the community is placed in such a state of fear and tension that offices are closed early and employees dismissed, storefronts boarded up, classes suspended, and transportation disrupted, to the general detriment of the public.14 (emphasis supplied)

Accordingly, the petitioners in Navarro failed to show that no undue risks will be caused by the holding of the rally in Plaza Miranda. On the other hand, the court justified the grant of a permit to supporters of the anti-American Military Bases near the United States Embassy in Manila, absent a clear showing of a clear and present danger that may result with the planned activity.

The overbreadth doctrine and the vagueness test are also employed by the court in ascertaining whether a state regulation governing speech is already constitutionally-proscribed. In applying the overbreadth doctrine, the court is tasked to scrutinize the regulation and determine whether it invariably covers even those that clearly fall within the ambit of protection of the guarantee. In Ashcroft v. American Civil Liberties Union, the US Supreme Court held that the use of community standards as a measure to determine whether a material posted in the Internet for commercial purposes is harmful to minors is narrow enough and provides an identifiable marker by which speech is judged.16 Thus, the statute, on its face, is not overbroad. However in a sequel,17 the Court decided that the statute, as applied, may violate the First Amendment protection. Accordingly, a regulation limiting free speech must be the least restrictive means to achieve a desired goal: even those that clearly fall within the ambit of protection of the guarantee. In Ashcroft v. American Civil Liberties Union, the US Supreme Court held that the use of community standards as a measure to determine whether a material posted in the Internet for commercial purposes is harmful to minors is narrow enough and provides an identifiable marker by which speech is judged.16 Thus, the statute, on its face, is not overbroad. However in a sequel,17 the Court decided that the statute, as applied, may violate the First Amendment protection. Accordingly, a regulation limiting free speech must be the least restrictive means to achieve a desired goal:

The purpose of the test is not to consider whether the challenged restriction has some effect in achieving Congress’ goal, regardless of the restriction it imposes. The purpose of the test is to ensure that speech is restricted no further than necessary toachieve the goal, for it is important to ensure that legitimate speech is not chilled or punished…the court should ask whether the challenged regulation is the least restrictive means among available, effective alternatives.18

In this case, the availability of other less restrictive means19 to curtail child pornography is sufficient to maintain the injunction issued by the lower court to restrain the implementation of the statute.

In California v. Miller,20 the US Supreme Court formulated three tests by which a material could be judged as obscene:

a. whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;

b. whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law;

c. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

These three pronged-tests have subsequently been followed and applied in numerous cases, among which are the Ashcroft 1 and 2, respectively.21

In all statutes regulating free speech, it is also fundamental that these regulations have a rational relationship to a permissible state objective.22 Using this test, the US Supreme Court invalidated a zoning ordinance prohibiting all forms of live dancing since it is not only overbroad; it also does not further a sufficiently substantial state interest.23

Towards a clearer understanding of art as protected speech

Many say that beauty is in the eye of the beholder. It is perfectly reasonable then for a person to have a different view than what the majority has. It is equally comprehendibleto have a lone dissenter amidst the mob of conformists or those in agreement. In Cruz’s case, it became a battle between the voice of the beleaguered and the loud “wang-wang”24 of the leaders and their allies on the one hand, and the common man, on the other.

A careful scrutiny of the arguments wielded by the majority evinces the clear and pervasive misunderstanding of the metes and bounds of free speech. Since speech is a constitutionally-protected area, any regulation limiting it must only be upheld after passing through a test of strict scrutiny. In this case, it is patent that censuring the art exhibit in CCP is a clear violation of the artist’s right to free speech.

Even as we admit that the State has a reasonable interest in protecting its citizens from offensive and insulting materials, this interest must be balanced with the underlying goal of protecting the area of free speech. As stated in Schad v. Bourough of Mount Ephraim,25 such regulations must show that there is a rational relationship with a permissible state objective.

In this case, what precisely is the permissible state objective which can legitimately topple the freedom of expression in its pedestal? From the facts before us, the answer is clearly none.

Freedom of Religion

The state cannot claim that the same offends religious sensibilities, otherwise, it would necessarily bring to fore the issue on non-establishment of religion.26 The Constitution clearly provides that no law shall be made respecting an establishment of religion. If the same is offensive just by the fact that it makes a mockery of sacred symbols by organized religions, then the state, in its reasoning, clearly engages in a slippery slope policy, where the non- establishment clause may be equally used to justify any position. As Dean Pangalangan opines: “[t]he seventh fallacy is that the CCP violates religious neutrality by exhibiting irreligious art. So conversely it violates religious neutrality if it exhibits religious art?”27

The reality is, what may be deemed sacred by the Catholics may be quite as easily offensive to non-members of this religious institution. To argue then on the basis of religion and offense to religious sensibilities, as a way to limit freedom of expression, is to engage in a battle that from its commencement has already been prematurely lost. Therefore, arguing on the basis of freedom of religion in cases relating to freedom of expression is the weakest and should be the argument of last resort.

The decision to close down the exhibit is essentially a prior restraint on the ability of the people to engage in discussions. If continuously repeated, a chilling effect on speech is inevitable. Instead of expressing themselves freely, artists like Cruz, will then opt to portray the conventional; to stay at the forefront of what is normal and blasé and passé, instead of challenging the limits of artistic and intellectual possibilities.

Community standards

Were we to apply the community standards test enunciated in Miller and subsequently reiterated and expanded in Ashcroft, we are faced with the following questions: What exactly are the community standards? Is it enough to invoke that the Philippines is a predominantly Catholic country and it will suffice to conclude that since it offends Catholic clergies’ sensibilities, the rest of the Philippine population also do?

In Ashcroft 1, the Court noted that the community standards are not to be judged according to the most puritan of sensibilities, but according to the judgment of the average man that the material is “patently offensive.” This posed a serious problem to the Court because of the nature of the Internet where viewers are not limited to one geographical location, which made the identification of the extent and breadth of “community standards” very problematic. The Court however, brushed off these claims and decreed that the standard to be used is the community standards, taken as a whole, and not merely the standards of the few.28<>

Thus, applying the foregoing in the matter before us, the community standards that should be used in determining whether a material is protected by the freedom of speech should be the standards of the community, taken as whole, and not merely those of religious leaders. Freedom of religion therefore is not the strongest argument by which censorship can be automatically had, hook, line and sinker.

Content-based regulation

Aside from these, the censorship undertaken with respect to the exhibit is clearly not the least restrictive means, as enunciated in Ashcroft 2, to achieve a legitimate government objective, assuming there is such a compelling state interest. This is especially in light of the fact that the Kulô art exhibit was held at a private gallery in CCP where people may easily opt out of viewing it by simply not going there. With this in mind, neither can it be said that the precipitate closure of the exhibit is a reasonable time, place and manner regulation, since the closure was impelled by the content of the exhibit and not merely the goals of necessity and convenience.

Does Poleteismo then present a clear and present danger of a substantive evil that the State has a right to protect? But what precisely is the evil sought to be protected? In Navarro, the Court held that holding a rally in Plaza Miranda presents a clear and present danger to the nearby community because of the unrest it brings and the admitted inability of the petitioners to prevent the attendant dangers and risks brought about by their rally. On the other hand, the Court in Reyes allowed the rallyists to hold a peaceful assembly near the US Embassy in Manila, absent a clear showing of a clear and present danger of a possible social unrest. In both these cases, the reason behind the regulation was the underlying considerations for public welfare and national security.In contrast, the alleged clear and present danger posed by an alleged irreligious art is difficult to grasp. Will it similarly endanger national security or disrupt the peace in the community? A careful reflection on this question reveals that there is no similar danger, and neither is there a genuine compelling State interest. Consequently, there can be no justification to the closure other than sheer strength of political clout.

Conclusion

History has shown us that great ideas are developed in the crucible of free, robust and impassioned debate. The guarantees of freedom of speech and expression were established to foster exchange of ideas. It is therefore proper to encourage the proliferation of discussions in areas traditionally thought of as taboo and open the floodgates of discourse so that people may be enlightened. In suppressing information and discourse, people are robbed of opportunities to look at the facts in relation to the existing realities and draw rational and objective conclusions from them.

It is precisely because of the evils so prevalent in the past that constitutional freedoms are asserted and stated in the Constitution, in various international agreements and in judicial decisions. Since our laws expressly provide for the protection of free speech and discourse,religious leaders cannot have a superior right in suppressing an otherwise informative discussion.

** Vice-Chairman, PHILIPPINE LAW JOURNAL Vol. 86; J.D., University of the Philippines (2012); B.A. Public Administration, University of the Philippines (2007). Ms. Langit is a firm believer in Jesus Christ as the only way, the truth and the life, but takes on a liberal view on controversial matters concerning religion. She believes that there is a better way to combat the growing immorality in the world today and resorting to censorship and vociferous protest would only result in making Christianity obnoxious to others.

6 Chris Millado, Statement of CCP exec on controversial art exhibit, Aug. 16, 2011, available at http://www.gmanews.tv/story/229244/nation/statement-of-ccp-exec-on-controversial- art-exhibit(date last visited: May 24, 2012). Millado is the Vice-President and Artistic Director of the CCP.

7 Raul Pangalangan, Passion for Reason: ‘Freedom for the thought we hate’, Aug. 16, 2011, available at http://opinion.inquirer.net/9801/%E2%80%98freedom-for-the-thought-we-hate%E2%80%99(date last visited: May 24, 2012).

19 According to the Court, the use of filters at the receiving end is a more likely alternative rather than controlling the content of websites as espoused in COPA. The Court also reiterated that the respondents need not show that the alternative is the least restrictive and most efficient, but rather, the Government should show that they are not what they claimed to be. For having failed to carry out this burden, the Court invalidated the COPA, as applied. Id. at 667.

20 413 U.S. 15, 25 (1973)

21 See supra notes 16-17.

22 Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68-69(1981).

23 Id. at 62.

24 This word became popular after President Aquino used this in his inaugural speech after being sworn in to Presidency in 2010 in describing the pervasiveness of corruption in the country. See Jun Pasaylo, P-Noy highlights ‘wang-wang’ policy in SONA, THE PHILIPPINE STAR, Jul. 25, 2011, ¶ 3, available at http://www.philstar.com/nation/article.aspx?publicationsubcategoryid=63&articleid=709870 (May 24, 2012).

Erratum: In Volume 86, Issue 3, the name of one of the authors of Caught In A Web[B] Of DNA Disarray: An Examination of the Remedy of Post- Conviction DNA Analysis and a Case Note on People v. Webb, was misspelled as Ms. Mary Rhauline dG. Lambing. It should be Ms. Mary Rhauline dG. Lambino. We apologize for the oversight.